信息网络安全法律问题调查报告(节录)

Report of the Survey on Legal Issues on Information and Network Security (Excerpt)

 DONG Hao, ZHANG Fan

This report is a part of the China National Humanity and Sociology Research Project: Legal Issues in the Concern of Information and Internet Security (Team Leader: ZHANG Chu)By using online questionnaires to the netizens and varified with control group, the authors made a survey on the following aspects:

(1)  The Netizen’s attitudes to the issues relevant to ISPs’ liabilities in providing services, such as online bank, music downloading, e-contracting, e-payment, e-governance, online games, etc.

(2) The Netizen’s sense of legal conduction while surfing the line, such as the percentage of reading privacy policies before using web services, the attitude to the "human searching" (collective digging personal information in the Internet), the percentage of using pirate works, etc.

(3) The Netizen’s attitudes to the offensive conducts, such as online harassment, distributing individual portraits, unsolicited E-mails, etc., and their attitudes to the means of dispute resolution.

(3) The Netizen’s values in confront with the digitalization, such as their attitudes to the online copyright, the freedom of expression, the virtule properties in web games, etc.

The 22,000 words report analyzed the results of the above survey in details, the full copy of the report will be provided in this page soon.

 


 

信息网络安全法律问题调查报告(节录)

董皓、张樊

获取方式:

本报告全文刊发于中国政法大学知识产权研究中心学术辑刊:《知识产权前沿报告》第二卷,中国检察出版社,2008,各地书店有售。

内容简介:

  本报告为国家社会科学基金项目《信息网络安全的法律问题研究》(主持人:张楚)的组成部分。课题组采用问卷调查的方法,借助网络技术,面向大众进行了在线调查(同时设置了两个问卷点以校验结果)。调查内容包括:(1)网民对网络服务商责任的态度,包括网民对互联网服务的认识,对网上银行、网络音乐下载、电子合同、收费服务、电子政务、网络游戏等问题的态度;(2)网民对自身信息安全的法律意识,包括对网络立法的了解程度、对软件协议条款、隐私权政策的关注程度,(3)网民对网上性骚扰、肖像权侵害、成人信息、商业广告邮件等侵权(或准侵权)或违法行为的态度,以及对纠纷解决途径的认识;(4)网民对与信息安全有关的法律现象的认识,包括网民的版权保护意识、对网络言论尺度的看法、对个人电脑的保护重视程度、对网络交往的态度、对虚拟物的权利的态度等方面。

  报告对调查问卷的32个问题分别进行了详细的数据分析,所有问题均包括统计图表,报告全文二万余字,以下仅节录部分根据调查数据和分析得出的观点,供有兴趣的读者参考。如需获得报告全文,请参考上述全文获取方式。

Public Domain in Chinese Copyright Law

 
Public Domain in the Context of Chinese Copyright Law:
A Perspective of Pluralism
 
 
 
This is an English abstract of Hao Dong’s doctorate dissertation (2008) defended at China University of Political Science and Law. The fulltext of the dissertation was written in Chinese.
 
 
Abstract
 
 
This dissertation tries to achieve three aims: (1) to elaborate the concept of public domain in a pluralistic perspective, which maps the subjects of the public domain in two dimensions: de jure publicand de facto public; (2) to analyze the subjects in the de jure public in the context of Chinese copyright law, such as the news, the content-illegal works, and the abandoned works (copyright wavied by copyright owners); (3) to explore the subjects within the de jure private but highly possible to fall into the de facto public (such as the orphan works, the procedure-unlawful works and some parts of a work that can hardly be protected) .
 
Chapter one reviewed the concept of “public domain” in various disciplines. The terms of “public sphere” or “public realm” are used in political philosophies to describe a space where people can discuss the public affairs openly and impartially.  In the institutional economics, the term “public domain” is employed to describe some “residual public attributes” of specific properties which are legally assigned to the individuals. In sociology and some legal feminism context, the “public domain” was used to describe the res publica as “a bond of a crowd, of a people, of a polity rather than the bonds of family or friends”. In the context of the copyright law, some scholars regard the public domain as the terra nullius and the expansion of the copyright protection is regarded as an enclosure movement, whilst some scholars  merely treat the public domain as a logic mirror of the proprietary right. This chapter also reviewed “public domain” in the language of Chinese. This chapter argues that the concept of public domain can hardly be clarified with an approach of private/public dichotomy. A better way of elaborating public domain should be defining the “public” with a pluralist approach.
 
Chapter two justifies the pluralistic approach with copyright theory in the context of Chinese copyright law. Firstly, Chinese copyright law is based upon a utilitarian philosophy and the rights vested to the copyright owners are statutory rights but not natural right. Therefore, the concept of public domain is not logically premised by the concept of the private copyright. Secondly, because copyright is mainly an exclusive right to authorize/prohibit others acting, once the copyright owners waive the right deliberately or fail to exercise the right, the works may slip to the de facto public. Third, in a utilitarian framework of copyright law, the de facto public is sensitive to the incentives, the lower the incentives vested to the copyright owners, the higher ratio the works will go into the de facto public. Thus the statutory damages for the copyright infringement can be a key factor of balancing the interests, adjusting it may be more efficient than considering introduce a new right.
 
Chapter three analyzed the copyright waiving. Although most Chinese scholars believe copyright cannot be waived in China because of the existence of moral rights, this chapter firstly argues that such notion will not stand unless copyright is a natural right. Secondly, this chapter alerted that one has to analyze an alleged “waiving” conduct carefully, because it may be actually a conduct of authorization. A valid waiving conduct should satisfy five prerequisites, and it will leads to three legal consequences. Thirdly, as to the waiving of the moral rights, it is a mistake to make an overall conclusion on whether or not they can be waived. Each moral right has its specific features that should be analyzed respectively. Right of publication and the right of integrity can neither be transferred nor be waived. Right of revision cannot be transferred but can be waived, whereas right of attribution can either be transferred or be waived.
 
Chapter four shifted to the micro-analysis of the de jure public. On the term of copyright protection, I criticized the perpetual protection to the moral right in Chinese copyright law after a comparative research. Then I illustrated that the term of copyright protection is not as clear as it supposed to be because of the uncertainty of a copyright owner’s life expectancy. This brings the problem of orphan works, which will be specifically discussed in the next chapter. On the copyrightability of a work, this chapter argues that the “idea/expression” dichotomy can hardly draw the line between public domain and the domain of exclusive right. On the contrary, with the perspective of pluralism, one may find that even a work as a whole is copyrightable, some parts of it may still be within the de jure public. originality should always be a basic test for copyright infringement. As for the works created for/by the government, this chapter illustrated both the British “crown works” and the choice of denying their copyrightability. Chinese copyright law follows the latter. However, the right of publication and/or the right of compilation are actually reserved by the government with some administrative regulations. As for the news, this article argues that although they are excluded from copyright protection, they are works. This chapter propose to categorize news with three types, then bring them into the pools of full protection, statutory license and public domain respectively. Lastly, this chapter analyzed the provision of denying copyright protection to “illegal works” in Article 4 of Chinese Copyright Law, and propose to examine it with Three-Step Test stipulated in the TRIPS.
 
Chapter five focuses upon orphan works. orphan works are works whose copyright owners can hardly be located, hence the users may not exploit the works lawfully with the licenses issued by right owners. Although this term comes from the united states, The dilemma of orphan works and abandon software also exists in the context of Chinese copyright system, and this phenomena may be more widespread because the history of Chinese copyright law in the recent 100 years are inconsistent, unsteady and intermittent. Furthermore, the current Chinese copyright system is of not mature enough. It not merely lacks solutions for  the orphan work problem, but also exists unreasonable provisions that may worsen it. Four factor should be considered when one is about to solve the problem: (1) comply with the three-step test; (2) based on existing legal system of the country; (3) minimize the cost of both right owners and users; (4) guarantee the predictability of the benifits and the obligations. Based on these four premises, this article critically reviewed the solutions in the U.S., Canada and Japan, and then proposed a set of multi-method and integrated suggestion that suit to the features of Chinese copyright regime. The dilemma of orphan works is a typical example of the transformation from the de jure private to the de facto public.
 
The four annexed tables collected the key provisions of de jure public in various countries.
 
Keywords:
Public Domain, Copyright, Pluralism, Unlawful Works, orphan Works

 

 

Public Domain in Chinese Copyright Law

 
Public Domain in the Context of Chinese Copyright Law:
A Perspective of Pluralism
 
 
 
This is an English abstract of Hao Dong’s doctorate dissertation (2008) defended at China University of Political Science and Law. The fulltext of the dissertation was written in Chinese.
 
 
Abstract
 
 
This dissertation tries to achieve three aims: (1) to elaborate the concept of public domain in a pluralistic perspective, which maps the subjects of the public domain in two dimensions: de jure publicand de facto public; (2) to analyze the subjects in the de jure public in the context of Chinese copyright law, such as the news, the content-illegal works, and the abandoned works (copyright wavied by copyright owners); (3) to explore the subjects within the de jure private but highly possible to fall into the de facto public (such as the orphan works, the procedure-unlawful works and some parts of a work that can hardly be protected) .
 
Chapter one reviewed the concept of “public domain” in various disciplines. The terms of “public sphere” or “public realm” are used in political philosophies to describe a space where people can discuss the public affairs openly and impartially.  In the institutional economics, the term “public domain” is employed to describe some “residual public attributes” of specific properties which are legally assigned to the individuals. In sociology and some legal feminism context, the “public domain” was used to describe the res publica as “a bond of a crowd, of a people, of a polity rather than the bonds of family or friends”. In the context of the copyright law, some scholars regard the public domain as the terra nullius and the expansion of the copyright protection is regarded as an enclosure movement, whilst some scholars  merely treat the public domain as a logic mirror of the proprietary right. This chapter also reviewed “public domain” in the language of Chinese. This chapter argues that the concept of public domain can hardly be clarified with an approach of private/public dichotomy. A better way of elaborating public domain should be defining the “public” with a pluralist approach.
 
Chapter two justifies the pluralistic approach with copyright theory in the context of Chinese copyright law. Firstly, Chinese copyright law is based upon a utilitarian philosophy and the rights vested to the copyright owners are statutory rights but not natural right. Therefore, the concept of public domain is not logically premised by the concept of the private copyright. Secondly, because copyright is mainly an exclusive right to authorize/prohibit others acting, once the copyright owners waive the right deliberately or fail to exercise the right, the works may slip to the de facto public. Third, in a utilitarian framework of copyright law, the de facto public is sensitive to the incentives, the lower the incentives vested to the copyright owners, the higher ratio the works will go into the de facto public. Thus the statutory damages for the copyright infringement can be a key factor of balancing the interests, adjusting it may be more efficient than considering introduce a new right.
 
Chapter three analyzed the copyright waiving. Although most Chinese scholars believe copyright cannot be waived in China because of the existence of moral rights, this chapter firstly argues that such notion will not stand unless copyright is a natural right. Secondly, this chapter alerted that one has to analyze an alleged “waiving” conduct carefully, because it may be actually a conduct of authorization. A valid waiving conduct should satisfy five prerequisites, and it will leads to three legal consequences. Thirdly, as to the waiving of the moral rights, it is a mistake to make an overall conclusion on whether or not they can be waived. Each moral right has its specific features that should be analyzed respectively. Right of publication and the right of integrity can neither be transferred nor be waived. Right of revision cannot be transferred but can be waived, whereas right of attribution can either be transferred or be waived.
 
Chapter four shifted to the micro-analysis of the de jure public. On the term of copyright protection, I criticized the perpetual protection to the moral right in Chinese copyright law after a comparative research. Then I illustrated that the term of copyright protection is not as clear as it supposed to be because of the uncertainty of a copyright owner’s life expectancy. This brings the problem of orphan works, which will be specifically discussed in the next chapter. On the copyrightability of a work, this chapter argues that the “idea/expression” dichotomy can hardly draw the line between public domain and the domain of exclusive right. On the contrary, with the perspective of pluralism, one may find that even a work as a whole is copyrightable, some parts of it may still be within the de jure public. originality should always be a basic test for copyright infringement. As for the works created for/by the government, this chapter illustrated both the British “crown works” and the choice of denying their copyrightability. Chinese copyright law follows the latter. However, the right of publication and/or the right of compilation are actually reserved by the government with some administrative regulations. As for the news, this article argues that although they are excluded from copyright protection, they are works. This chapter propose to categorize news with three types, then bring them into the pools of full protection, statutory license and public domain respectively. Lastly, this chapter analyzed the provision of denying copyright protection to “illegal works” in Article 4 of Chinese Copyright Law, and propose to examine it with Three-Step Test stipulated in the TRIPS.
 
Chapter five focuses upon orphan works. orphan works are works whose copyright owners can hardly be located, hence the users may not exploit the works lawfully with the licenses issued by right owners. Although this term comes from the united states, The dilemma of orphan works and abandon software also exists in the context of Chinese copyright system, and this phenomena may be more widespread because the history of Chinese copyright law in the recent 100 years are inconsistent, unsteady and intermittent. Furthermore, the current Chinese copyright system is of not mature enough. It not merely lacks solutions for  the orphan work problem, but also exists unreasonable provisions that may worsen it. Four factor should be considered when one is about to solve the problem: (1) comply with the three-step test; (2) based on existing legal system of the country; (3) minimize the cost of both right owners and users; (4) guarantee the predictability of the benifits and the obligations. Based on these four premises, this article critically reviewed the solutions in the U.S., Canada and Japan, and then proposed a set of multi-method and integrated suggestion that suit to the features of Chinese copyright regime. The dilemma of orphan works is a typical example of the transformation from the de jure private to the de facto public.
 
The four annexed tables collected the key provisions of de jure public in various countries.
 
Keywords:
Public Domain, Copyright, Pluralism, Unlawful Works, orphan Works

 

 

董皓、张樊:论邻接权制度的正当性基础

The Legitimacy of Neighboring Right Legislation:
An Opposition to the "Communicator’s Right by Making Other’s Works Available through the Information Networks"

DONG Hao, ZHANG Fan

Published in Science-technology and Law, Vol. 70 (2007 No. 6). Republished (full-text) in the Civil and Commercial Law – Photocopies of References by Renmin University of China, (2008 No. 4).

 

Click Here for the Full-text (PDF)

HTMLVersion (revised) 


论邻接权制度的正当性基础——兼论“信息网络传播者权”的虚无

董皓、张樊

说明:本文初稿参加第七届全国律师论坛获优秀论文奖,完善修改后正式发表于《科技与法律》2007年第6期,《人大复印资料·民商法学》2008年第4期全文转载。

本文引用方式:
董皓、张樊:“论邻接权制度的正当性基础——兼论“信息网络传播者权”的虚无”,载《科技与法律》2007年第6期(总第70期),第41-45页。

点击此处下载全文

HTML版本(有改动)

摘要:著作权是以法律关系的客体(作品)为逻辑起点发展出的制度体系,而邻接权的逻辑起点则在于法律关系的主体(作品传播者)。这一差异是解决著作权和邻接权关系的重要理论工具。基于此,本文对两个实践中的问题进行了梳理,明确提出:原作品的著作权人不可能成为相应的邻接权主体,而所谓"信息网络传播者权"也没有存在的合理性。

关键词:邻接权,著作权,作品,表演者权,信息网络传播

Is TRIPS a "Forum Shifting" of WTO?

QUESTION: The inclusion of TRIPS Agreement in the WTO Agreements has been sharply criticized as an act of forum shifting with detrimental effects on the future of the WTO. Discuss this proposition*
 
TITLE:
Critical Analyses to the “Forum Shifting” and “Detrimental Effects” Proposition: from the Approaches of History, Political Science and Positivism Legal Analysis
 
DONG Hao
Nov 2006
 
Table of Contents
 
I. Introduction
II. Some Facts in the History of the TRIPS Agreement Negotiation
III. The “Strategy Linkage” between IP and WTO
IV. Legitimacy of “Forum Shifting”
V. Conclusion
 

关于“虚拟财产”及“QQ盗号”的法律分析

  豆按:这篇东西是2007年4月初写的,当时是想给《21世纪经济报道》或者相关媒体投个稿,所以在措词上比较认真,比起通常的网志来说,算是一篇比较"正规"的文章。无奈自己懒,竟然忘了此事,现在投稿时机已过,所以从《内参》中移出来,供有兴趣的朋友批评。

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关于“虚拟财产”及“QQ盗号”的法律分析
==================================

  文 /  董皓

 

董皓:析邻接权人“通过信息网络向公众传播”的权利

Neighboring Right Owners’ Right of Communication to the Public through Information Networks

DONG Hao

Abstract: The Copyright Law of People’s Republic of China("The Law" hereinafter)authorizes neighboring right owners (performers,sounds recorders and video recorders) some "Rights of Communication to the public on Information Networks". This article notes the following arguments: (1) According to The Law,these rights are different to copyright owner’s "Right of Communication of Information on Networks". (2) A performer is incapable to enjoy the right of communicate his own performance to the public on information network,but can merely authorize others to communicate his performance to the public on information network. (3) The sounds recorders and video recorders should have the "right of communication to the public on information network by themselves", whilst The Law neglected itwrongfully. (4) The distinction between "distribution" and "communication to the public on information network" should be clarified by the way of understanding the differences among "work", "medium of work", "tangible medium" and  "intangible medium". (5) It is reasonable to restrict the Radio and Television Stations enjoying the right to communicate to the public on information networks.

Key words: Information network; Neighboring right; Performance; Recording; Intangible Medium

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析邻接权人“通过信息网络向公众传播”的权利

董 皓**

  本文引用方式:董皓:“析邻接权人‘通过信息网络向公众传播’的权利”,《云南大学学报法学版》第20卷第6期(2007年第6期)。

  摘要:本文是对现行中国著作权法中,邻接权人“通过信息网络向公众传播”的权利的规范分析。主要有以下观点:第一,《著作权法》中的“信息网络传播权”是著作权人的权利,与邻接权人无涉;第二,表演者只能授权他人通过信息网络向公众传播其表演的权利,而不可能单独享有“自己通过信息网络向公众传播表演”的权利;第三,《著作权法》在录音录像制作者“通过信息网络向公众传播”的权利的规定中,出现了漏洞;第四,区分通过信息网络“传播”与“发行”的关键在于理解音像制品与载体、有形载体和无形载体的区别;第五,广播组织不应该享有类似权利。

  关键词:信息网络传播,邻接权,表演,录音录像,载体

胡仕林:论人事保证制度的禁止

豆按:本文为豆子的安达胡仕林的作品。本文不适用本站创作共用约定,对本文的转载和信息网络传播均需经过作者的书面许可。
论人事保证制度的禁止
兼评《劳动合同法(草案)》相关规定
        胡仕林
【摘要】 人事保证制度有违意思自治之公平和责任自负的原则、对缔约认知基础形成破坏、模糊了合同与侵权法律制度二者相对独立的界限,也为立法精神所不容。该制度既不利于平等就业、促进就业,也不利于管理水平的提高和优秀企业文化的建设。因此,立法应从根本上禁止而非简单的限制。《劳动合同法(草案)》的相关规定对此有所体现,但尚需作更进一步的修改完善
【关键词】 人事保证   禁止   劳动合同法   立法建议