The Legal And Economic Analysis On The Copyright Protection In Network Environment

The copyright protection in the networ k environment has become one of the most important contents in the current copyright protection system,and also a vital issue which is inevitab le in networ k age when it com es to the whole intellectual property system.In the network environment with digital technology as the core,the form,content,specific system and lega l protection of copyright in intellectual property has presented a series of unique interrelated brand new issues,including its performance,contents,features,probl ems,developments,opportunities and challenges.It would have crucial theoretical and practical significances to perfect the legislation,enforcement and judicature of copyright protection in the network environment of China,when a series of principles and m ethods(with supply and demand analysis,cost and benefit analysis,efficiency and incentive analysis,interest game and interest balance analysis include d)can be applied on the basic of legal fundamental principles in the copyright protection,concerned from the perspective of research in law and econom ics which integrated law with econom ics from the whole legal process of legisl ation.A series o f theoretical and practic al issues in legislation are concern ed to analyze,to interpret and to predic t deeply and systematically from the perspective of law and econom ics,and to put forward suggestions on institution design as well,for the protection of copyright in the network environment in domestic law,comparative law and intern ational law and other aspects,including enforcement and judicature,about the cu rrent situation,the economic rationality,the existing problem s,the im provement and perfection of institution,and so on.The first part shows introduction.The introduction part elaborates the background of the subject,the value,the innovations and difficulties,methods and strategies of this th esis,especially the co re problem that this article intends to analyze and solve.Specifically,digital technology brings enormous changes to the creation,storage,copy and propagation of productions as well as huge convenience to the copyright infringem ent,thus in troduces major challenges to the lega l protection,infringement prevention and tort relief of copyright,these lead to a new requirement on the theoretical explanati on and practical m easure.This part summarizes the findings of legal studies and law econom ics researches that are carried out by hom e and abroad scholar s on intellectual property(including copyright)protection in the n etwork environment,and points ou t that m ultiple remarkable conclusions are achieved by wa y of dif ferent law econom ics theories from numerical perspectives.However,current studies still not cover the full explanation of economic theory concerning the copyright protection in the network environment,on the other side,the existing legal system in China are still unable to balance the interests between copyright owners and social public.Therefore,this part describes the unprecedented new developm ent in the field of copyright and the ne w challenges of copyright protection in the netw ork environment.It also points out the unique meaning of research on copyright protection in the network environm ent,with the use of principles and m ethods in law and economics.It then raises the core issue that this article wants to inte rpret and research with the use of principles and methods in law and econom ics,which is,ho w to better balanc e the interests of copyright holders with the interests of other stakeholders,especially with the public interest of the public.It further points out that by clarifying the root of the conflict between private interest and social public interest protected by copyright in the network environment,while exploring its substantial contradictions through law and economic analysis.It's feasible to find out a practical,reasonable and legitimate way to promote the real realization of interests balance in copyright protection in the network environment.The second part discusses the legal basic principle of copyright protection in the network environment.Both the starting point and the ending point of the research on copyright protection in the network envir onment stand grounded in the legal syste m of copyright protection in the network environment.Thus the legal basic principle of copyright protection in the network envir onment constitutes the prerequisite and basis for the law and econom ic analysis of copyright protect ion in the network environment.Starting from shock and ch allenge that the ways of information network communication bring to the copyright protection,this part analyzes and expounds the basic principles of law,such as the m anifestation,the concept,the subject,the object and the content of the copyright in the network environm ent.Firstly,it discusses the definition of copyright and network wo rks in the networ k environment,analyzes the form of copyright in the network environment,and points out that the network w orks should take a general definition which includes the web-based presentation(dig itized works)of the tr aditional works,the work s published directly on the netw ork platform(digital works)and works th at are derived from a network environm ent(such as web pages,etc.).Secondly,it discusses different subjects of legal rela tion(network content providers,network service providers,network us ers)in relation to copyright protection in the network environment,as well as their legal behavior and legal liability problems related to copyright protection respectively.These different subjects undertake respective legal obligations of copyright pr otection in network environm ent,thus should undertake associated duties due to violating corre sponding legal obligations.Thirdly,it discusses the dif ference between copyright in the ne twork environment and the traditional copyright,primarily including the complexity of the id entity verification about subject of copyright,the particularity of the form,the particularity of the content(especially the right of inform ation network communication),the difficulty of specification,the dif ficult to determ ine the tim e,and the challenge of the borderless.Finally,it analyzes the part icularity of copyri ght content(nam ely personal rights and property rights)in th e network environment.The personal rights of copyright,such as the right of publication,the right of authorship,the right of modification and the right of integrity,can be easily infringed,and has the dif ficulty of preventing the infringement.The property rights of copyright,such as the right of information network comm unication and the right of reproduction,have the particularity of easily invaded and need to balance the interests of copyright holders with the public interest of the public.Meanwhile,it poin ts out its new requirem ents for copyright protection.The third part discusses the basic pr inciples of econom ics about copyright protection in the network environment.Modern economic scholars have already tried to interpret and analyze the copyright protection in traditional non-network environment by employing economic theory.While in the network environment,the copyright protection requires further tar geted explanation and anal ysis.First of all,the economic theory for generic intellectual property protection are also suitable to analyze the copyright protecti on in network environm ent.This part points out that the economic principles of general intelle ctual property protect ion in the network environment are also appli cable to the analys is of copyright protection in the network environment.It then analyzes the economic principle of mutual influence among knowledge economy,network and copyright protection.Meanwhile,it points out that the funda mental reason why copyri ght dispute in the network environm ent has its speciality is that,the Internet has changed the traditional interest pattern and interest relationship of related subjects.The intellectual property itself has the property of openness and public goods.W ithout protection,the producer of knowledge products may lose the incentiv e to create.Therefore,it is necessary to define property rights by em ploying legal monopoly to encourage innovation,to reduce transaction costs and to promote knowledge production.At the same time,the knowledgeability of public and reasonable use of others should also be protected in order to prom ote a wider range of knowledge dissemination,application and innovation.Concerning the special com plexity of copyright protection in network environment,economics can provide us lots of insights.For example,productions in network environment might suffer excessive limitation due to techn ical measures thus are unable to be opened for public usage,which leads to damage of public interests or imbalance among owners,broadc asters and users.Network environment reduces the overhead of copyright infringe ment,thus it is harder to notice the infringement and protect the copyrights.In network environment,the cost for copyright protection is rem arkably improved,the interest subjects are m ore diversified,the interest balance are more fragile,the technical cost are also enhanced.Second,economic theory reveals asymmetry between the effect of costs and benefits about the international copyright protect ion.In developed countries,the econom ic development level is relatively high,the legislative rules of intellectual property rights are relatively perfect,the econom ic cost of i mplementing the interna tional protection obligation of intellectual pr operty rights is not high.W hile developing countries are at lower level of econom ic development,the legislation of intellectual property rights is not perf ect enough,and the econom ic cost of implementing the international protection obligation of intellectual property rights is quite high.In the TRIPS protocol,the TPP protocol,and other regional trad e protocols,the chapters involving intellectual propert y protection are extending its scope,standard and enforcement measures requirements.Facing the reality of "low cost of infringem ent and high cost of right defense" when speaking of copyright in the network environment,facing the reality that the com petitiveness of intellectual property in developed and developing countries is un equal,facing the latest changing circumstance in international intellectual property trade rules,we must find out an optimal point of interests balance through th e analysis of cost and benefit,then formulate intellectual property rights m easures that conform to our national conditions and meet international obligations at the same time.The fourth part m akes law and eco nomic analysis on the fair use sys tem of copyright in the network environm ent.Firstly,it discusses the origin,concept,constitutive elements and princip le of inte rests balance of the fair use system of traditional copyright.It points out the fair usage system of copyright reflects th e interests among authors,broadcasters and users.Secondly,it analyzes the shocks and challenges of the network environment on the fair use system of copyright,including the risk of infringement which res ult to the s hrink of the right of fair use,the implementation of infringement under the guise of the fair u se,the use of technical measures which reduces the scope of fair us e,the dropping trend of legal status of the right to fair use in copyright conflicts.At the same time,from the perspective of a fair balance between personal efficiency and public welfare,the rise and spread of new ways of using copyright in the ne twork environment(such as tem porary reproduction and fair use,link and fair use,digital library,distance education,and so on.)all need a reasonable adjus tment in the scope and con ditions of application o f the fair use of copyright,ai ming at rebuilding the balan ce of interests moderately.Thirdly,it discusses the problem of copyright restriction in the network environment.This part d iscusses how to realiz e the balan ce of interests of the parties when protecting copyrights in the network environment,and points out that there is no other possibility to adjust the fair use system of the copyright,other than expanding or limiting the scope of fair use,which need to achiev e a reasonab le balance of interests among the copyright holders,users,disseminators and other stakeholders.In order to solve the imbalance problem in our copyright protection in the network environment,we should perfect the judgm ent standard of "rationality" in fair use of our country,moderately expand the scope of fair use,handle the relationship between technical protection measures and fair use,adopt the rational factors in both regulations and factors,summ arize the original system as the right of fair use and restrictions,refine its legal rules and measure standards,add general and principle binds,raise the legal consequences when th e owners obstacle users from fair usage,and make the legislation of copyright more reasonable and scientific.The fifth part makes law and economic analysis on the copyright protection of computer software in the network envir onment.Computer software are im portant intellectual properties.The key feature of them are replicability from the perspective of tort and protection.T o provide prot ection for com puter software by way of intellectual property meets the practical demands of both personal and social public interests no matter seen from right validity or stimulating innovation.First of all,taking our reality as an exam ple,the computer software can be easily copied in an infringing way in the network environm ent.Therefore,the computer software faces serious legal risk of infringem ent and is in urgent need of guarding against legal risks and improving the legal protection.Sec ondly,from the inherent properties and characteristics of the computer software itself,the computer software has three legal representations including the copyright qualification,the pate ntability and the commercial confidentiality,which m akes the c omputer software can be protected through three different models,such as the copyright law,patent law and trade secret law.These three models are state-of-the-art models of legal protection for computer software.From the perspective of copyright law,the content of software is the sequence and sentence of logics,it can be represented as numbers,texts and symbols and stored in tapes,disks and hard disks by way of technologies.However,computer software ae easy to be dup licated,copied and torted,si nce the technique naturally have such features,thu s it is neces sary to set up law for forbid the unauthorized usage.Therefore,com puter software have the legal attribute of copyright,thus is suitable to be enclosed as the objects of copyright law.The advantages of copyright protection is that,it ado pts the principle of automatic protection and is in line with the software product,which has the sam e character of a short life and a fast replacement cycle,but the copyright la w does not protect the core technology and design ideas,which is in m ost urgent need for software protection.At last,in network environment,the software law in our country are short at controlling the risk while balancing the users' interests,thus needs further improvem ents.In terms of strengthening computer software protection in our coun try,we should establish a variety of protection modes based on copyrig ht protection,trade secret act,patents act,anti-unfair com petition act,etc.,and should expand the scope of fair use of computer software,put the decompiling under fair usage scope,and discriminatively shorten the protection duration of computer software.The sixth part makes law and economic analysis on the copyright infringement and its relief in the network environm ent.Firstly,it analyzes the particularity of the copyright infringement in the network envir onment,discusses the invisibility of the infringing object and the concealm ent of the infringement,and points out that the infringement has a certain kind of group infringement and non-commercial purpose,and there is an increasing trend to both th e uncertainty of jurisdiction of the court and the difficulty in choosing the law of choice.Secondly,the manifestations of copyright infringement under network environment are analyzed.In accompany with the rapid developm ent of the netw ork,the network of infri ngement technology is also updated in a synchronized m anner.In network environm ent,the specific manifestations of copyright infringe ment include: unauthorized download and upload,illegal plagiarism and reprint,hotlinking,infringe upon technique measures or right m anagement information.Unintentional infringement and conscious infringement coexist during this s tage,moreover,the inf ringement behaviors of network uploaders,downloaders,network service providers coexist.Thirdly,it analyzes the elements of copyright infri ngement and the principle of imputation in the network environm ent.In network enviro nment,the tort liabi lity of copyright means to upload and broadcast a production without the authorization from owners.One who commit such should undertake Tort liability for damages according to law.Specifically,the network users and the network suppliers should undertake such liability.In order to improve the copyright protecti on and tort relief,our country should advocate perfecting the collective management system of copyright and establishing the legal licensing system of online works,and to establish and improve the system of technical pr otection measures.Finally,through combing with the existing national conditions in China and comparing to the United S tates,the European Union,Japan,international tr eaties and other foreign law and its experience,this part proposes detail ed suggestions on pe rfecting copyright protection law in our netw ork environment.The current disadvantages include: vague language of legislation,dif ficulties of determ ing the ownership of network copyright,indefinablility in jurisdiction due to the dif ficulties of determ ining location and identities,hard to take evidence,the am ount of damages is difficult to ascertain.In comparison,there are num erical good legislation a nd measures in US,European and Japan that deserve our studie s,especially in protecting the copyright owners,punishing the tort behaviors,and balancing the social public interests among parts.It is recommended that C hina should clarify the relevan t definition in legislation,improve the system s such as th e fair use,increase network copyright infringement punishment,internalize social negative external costs resulted from the infringement into private costs caused by th e infringer,strengthen the recognition of jurisdiction and evidence of the rules etc.in judicial protection.Finally,the conclusion part summ arizes the copyright protection issues in the network environment,concludes the main points of this paper and puts forward the prospects of future researches.In networ k environment,the broadcast way of works of the owners have greatly changed,social public and related subjects have also developed the way that the works are us ed through network,tr aditional copyright protection model have to ad just so as to protect th e right of social public by employing network as m uch as possible,as well a s maintain the interests of copyright owners.In accordance with the opinion and conclusion of this literature which are drawn from law economic analysis on home law,comparative law,and international law,copyright protection in network environment should further refine and clear r elated legal rules and fulfill the f air usage system,enhance the enforcement and punishm ent for copyright infringement,further improve the jurisdiction confirmation and evidence principles,so as to better balance the interests of copyright owners,other closely subjects even social public in the legislation,law enforcement and justice stages.