Research On The Alienation Of Copyright System

Since the birth of the copyright system, it struggles between ensuring personal interest of the owners and promoting social public interest. Along With the enhancement of international economic integration, the developed countries use their economic advantages to institutionalize prayers for the interest of a small group of people, and cause their domestic copyright systems to be internationalized, resulting in a trend of alienation of the copyright system which gradually deviate from its fundamental value of promoting social public interest. The purpose of this article is to explore in depth the value orientation of the copyright legal system, by means of historical study, comparative research and empirical research and some other research methodologies, to analyze the original value of copyright system from the perspective of alienation, in hopes to arouse people’s attention to and alert on the copyright system alienation, and study on countermeasures to promote development of copyright system.This article is divided into seven parts, with the introduction, conclusion and other five chapters.The introduction part elaborates the significance of this article, expatiates on the research status both in China and overseas, and introduces research methods and innovation points. The research of copyright system alienation helps people become more deeply aware of the justifiable value-orientation of copyright system. This article analyzes in depth and in details copyright over-protection in real life, discusses the phenomenon of violation of public interest by protection of private rights, and adopts a new approach to copyright system improvement through identification of the nature of copyright system alienation. Alienation is an issue widely and frequently discussed about in the field of philosophy but has been barely referred to in the science of law. There lacks systematic theoretical framework and systematic analysis of the issue of legal system alienation. Though there has been some research on intellectual property alienation, such research tends to be fragmentary and shallow. Systematic analysis by use of the alienation theories existing in the field of philosophy will be a new approach to methodology of jurisprudence.The first chapter analyzes the philosophical origin and related basic theories on alienation. In the field of philosophy, alienation is defined as the denial of, separation and deviation from something itself. Many famous philosophers in human history such as Hegel, Feuerbach and Marx illustrated about it in depth, from the alienation thought of “Objective idealism and dialectics” of Hegel, humanism thought of Feuerbach to the alienation thought of Marx’s “dialectical materialism”, to the multiple alienation thought of modern western Marxists, reflecting the evolutional skeleton of alienation thoughts from “metaphysics” to “physics”, and from abstract concepts to concrete ideas. The theories of legal system alienation are derivative results of the application of Marx’s alienation theories in social relations to analysis of legal system. In the theory of intellectual property alienation, there exists confusion of concepts, such as confusion of alienation with abuse of rights, and that of system alienation with alienation of rights. In fact, the abuse of right and alienation are not the same phenomenon. The so called “alienation of copyright” is a misused term. The most scientific appellation for it is “alienation of system”. The alienation of copyright system refers to a phenomenon where designation and operation of the copyright system gradually deviate from the fundamental value of copyright system, moving to the opposite side. It is a process and is in a relative sense, and will eventually cause damage to the internal coordination of copyright system.The second chapter analyzes the values of copyright system, respectively from the perspective of legal provisions and that of historical development. The objective values, the values of form and the evaluation values of law are integrated as a whole, but the objective values are of foundation and origination because they reflect the purposes of establishment of the law depict the ideal state of social relations, and define the allocation of rights and obligations. From the perspective of the legal provision of copyright system, values of copyrights are classified into safeguard values and promotion values. Safeguard values are those values of the copyright system to protect and safeguard the legitimate rights and interests of the right owners, while promotion values are the values of promoting the creation and dissemination of the works and of promoting the development of the social culture. Safeguard values of copyright system are means to realize the promotion values while the promotion values are the ends of safeguard values. The early histories of American copyright and British copyright indicate that the realization of safeguard values is the original objective of the initial establishment of copyright system and that promotion values are just the means to achieve personal gains. As time goes by, promotion values have gradually become the fundamental value orientation of the copyright system. In terms of legal values, alienation is deviation from and even betrayal of the promotion values.The third chapter, by utilizing the methods of comparative study, historical research and empirical study, and based mainly on the copyright legal system in China, analyzes specific phenomena of the alienation of copyright system in such aspects as copyrightable subject matters, copyright rights, copyright term, fair use and administrative protection. There exits the legal principle of limitation in expansion of copyrightable subject matters and the idea-expression dichotomy. However, the phenomenon of expansion of copyrightable subject matters violating these two principles still exist at times in the history of copyright system both in China and overseas. With the development of science and technology and more importantly, driven by the interest group consisting of copyright owners, the types and content of the property rights in a work is in a trend of expansion. Most countries insisted on the content statutory principle and the closed legislative model in the process of expansion of copyright. But our country chooses the open legislative model and the types of the property rights in a work were expanded several times in the past few decades, turning the content of the property rights in a work from a limited scope to an unlimited scope. The expansion process of copyright content is, to some extent, the process of transforming copyright rights into real rights.The emergence of the technological measures turns the rights in rem from a fictioned state into a reality. In particular, the access-controlling measures is a complete betrayal from the traditional copyright values for it controls the social public from having access to the works, and thus obstructing dissemination of the works. Legalizing access control is the extreme manifestation of alienation of copyright system. Though the copyright term system is something that helps realize the promotion values of the copyright system, the unreasonably long term is a violation and extrusion of the public interest. Historically speaking, countries around the world tend to prefer long and extended durations. In terms of average life expectancy and average reproductive age of women, the term of current mainstream term system- the lifetime of a natural person plus fifty years- surpasses its originally designated purpose by a major proportion. The term extension movement in European countries and the U.S.A in the second half of the 20 th century resulted in more significant deprivation of public interest. The fair use system, which has been designed as a balance for achieving promotion values of the copyright, should have been accordingly expanded with the expansion of copyright content However, fair use system of copyright law in our country tends to be on the contrary, applicable scope of which has been continuously narrowed. In addition, the adoption of a closed legislative model leads to imbalances between copyright content and restriction. In terms of right equality, the copyright and other property rights should be protected to the same extent. Only when the copyright infringement does harm to the public interests, administrative protection may apply. But in practice there exists a trend of marginalization of public interest and even exclusion of public interest, strengthening copyright protection through public law, and misusing public resources to protect private interests.There are deep-rooted causes in both technology and economy behind the alienatin of co pyright system which is a part of political infrastructure. The fourth chapter explores the causes for alienation of the copyright system from the perspectives of technology development, the impact of economic transformation on copyright system and on the basis of relations between economic base and political infrastructure. Following the enactment of the Statute of Anne, inventions and improvements of photography technology, photocopy technology, cinematography and computer information technology stimulate expansion in types of the works and facilitate use of the works by the general public, which accelerates the conflict of interests between the copyright owners and users of the works. China is substantially in line with developed countries in application of new technologies, whereas it has been in haste in establishing its copyright system, as a result whereof the Chinese copyright system resembles copyright systems of the developed countries only in appearance, with substantial differences in essence. The nature of capitalism is capital accumulation by means of capital expansion, and the copyright interest group will forever be motivated to pursue maximization of benefits existing in or to intangible products and to promote domestic and international market shares of their works. China, as the receiving state of transplantation of the copyright system, is in a disadvantage position in terms of market economy development, enforcement of legal system and theory development. It has always been a priority for China to protect the interest of the other party or parties under every bilateral agreement or international convention to which China is a party. No one is aware that reciprocity in form has given birth to substantial unfairness. The copyright system adopted under external pressure attaches much more importance to its form than to its essence and it is incompatible with China’s reality.In response to the alienation of copyright system, the fifth chapter discusses the sublation of the Chinese copyright system which is alieanated in terms of copyrightable subject matters, copyright rights, copyright term, fair use and administrative protection. Sublation of alieanated copyright system demands that new copyright system be designed and adopted to correct alienation and pull the copyright system back in the right track where the system is based on and in service for the realization of its promotion values. The copyright system of China should define copyrightable subject matters in a closed legislative model, specify indispensable elements of the works, adopt the idea-expression dichotomy, and expand, to the appropriate extent, the scope of exclusion of subject matters. In terms of copyright rights, China should define copyright rights in a closed legislative model, provide for the right of pursuit, and expand the scope of reasonable measures. The most reasonable copyright term for works created by a natural person should be twice the average childbearing age of women provided that the author’s next two generations are covered thereby. The most reasonable copyright duration calculated on the basis of publication and from the date of publication should be twenty years after the date of publication of the works. It is not necessary for China to extend any copyright duration in decades to come. China should adopt a short-term renewal system with respect to photographic works and works of applied art provided that it lives up to the minimum level of protection required by relevant international conventions. In terms of fair use, copyright law should establish the open model centered on the three-step test, modify or add specific circumstances where the principle of fair use applies. In terms of administrative protection, administrative agencies in China shall strictly observe the public interest test for administrative enforcement of laws, master the judgment criterion for public interest, and enforce the law only for the public interest.