The Conflict Between Copyright and Free Flow of Information and the Solutions: From Real World to Cyberspace
Date Issued
2010
Date
2010
Author(s)
Li, Jeffrey
Abstract
As the era of internet comes, cyberspace has become a part of our living space. The digitalized internet increases the speed of information flow, and, as the nature of internet, conflicts with the monopoly character of copyright. In light of such conflict, this thesis tends to analyze whether the expansion of copyright in real world and the legislative direction toward internet are justified under the perspectives of history and our constitution.
In Chapter II, the thesis first explores reasons and theories of copyright protection and subsequently introduces different possible constitutional basis of copyright. Nonetheless, the thesis considers that merely sharing some similarity is not sufficient for us to conclude that copyright is a branch of constitutional human rights. The nature and historic relation between each human rights and copyright merits further study.
In Chapter III, through exploring the origin of copyright system, this thesis finds that copyright was created for censorship by governments in different nations. Following the appearance of democracy, the purpose of its regime has been transformed to encourage learning and creation through the limitation of “right holder” and “terms”. With this finding in mind, we may review the regime of copyright in light of constitutional laws. From the historic point of view, copyright does not derive from any kind of human rights; it even contradicts with some of them. As a consequence, the copyright may be discovered as being covered in the R.O.C. Constitution by Arts. 166 and 167(fundamental national policy), as well as Art. 23(restrictions upon human right’s restriction). Despite that we could incorporate copyright into the public policies in the orbit of constitution, whenever copyright is in conflict with some types of human right, the proportionality test must be applied to examine the constitutionality of copyright law.
In Chapter IV, the thesis examines what justifies the application of copyright law in current real world. After a close examination of the development of our copyright legislation, this thesis argues that the expansions of copyright regime constitute unnecessary restriction upon human rights under constitution. The unnecessary expansions include continuing extension of copyright terms, enlarging scope of copyright’s objects and contents, using of criminal punishments, and etc. These expansions gradually remove the limitations of “right holder” and “terms” upon copyright, which are indispensible in copyright law; now copyright goes back to the uncontrolled state before The Statute of Anne of England.
In Chapter V, the thesis points out possible difficulties when applying copyright into cyberspace. Relevant issues lie in copyright’s theory, constitution, and enforcement of law. Theoretical speaking, taking into account of the facts that internet offers many new incentives for creation and that digitalization decreases huge amount of copying cost, the conventional incentive theory can no longer provide justification. In terms of constitutional law, the thesis considers that internet is global and it would be odd to allow national copyright to govern global information flow. Finally, when enforcing copyright law by different nations, it is almost impossible to overcome problems of choice of law and jurisdiction. Confronting these issues, our legislators choose to enhance the protection of copyright holder instead of adopting less restrictive alternatives. It runs afoul of constitutional safe guards. In the end, the thesis divides the behavior of internet users into seven usages. Having identified the relevance of each usage to different concept of space, the thesis develops corresponding limits of copyright law vis-à-vis each usages.
Through analyzing the appropriateness of continuing expansion of current copyright law from the perspective of history and constitution, the thesis expects to reconcile the copyright system with the integrity of internet in our living society.
Subjects
freedom of speech
free flow of information
copyright
internet
cyberspace
globalization
national fundamental policy
SDGs
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