The Origin of Copyright: Expression as Knowing in Being and Copyright Onto-Epistemology 9780367756314, 9780367756321, 9781003163282

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The Origin of Copyright

Contemporary copyright was born in a heroic era of human history when technologies facilitated idea dissemination through the book trade reaching out mass readership. This book provides insights on the copyright evolution and how proprietary individual expression’s copyright protection forms an integral part of our knowing in being, driven by the advances of technology through the proliferating trading frameworks. The book captures what is central in the process of copyright evolution, which is an “onto-epistemological offset”. It goes on to explain that copyright’s protection of knowing in originality’s delineation of expression and fair use/dealing’s legitimization of unauthorized use and being are not isolatable, but rather mutually implicated. While the classic strict determinism has been subject to an onto-epistemological challenge, the book looks at the proliferation of global trade and the advent of information technology and how they show us the beauty and possibility of intra-dependence between copyright authorship, entrepreneurship, and readership, which calls for a fresh copyright onto-epistemology. Building on its onto-epistemological critiques of the stakeholder, force, and mechanism of copyright evolution, the book helps readers to understand why not only copyright, but also the law in general, and justice too, need to be onto-epistemologically balanced, as this is categorically imperative for being, which is the fundamental law of nature. Wenwei Guan is an Associate Professor of Law at City University of Hong Kong.

Routledge Research in Legal Philosophy

Procedural Justice and Relational Theory Empirical, Philosophical, and Legal Perspectives Edited by Denise Meyerson, Catriona Mackenzie, and Therese MacDermott The Origin of Copyright Expression as Knowing in Being and Copyright Onto-Epistemology Wenwei GUAN

The Origin of Copyright Expression as Knowing in Being and Copyright Onto-Epistemology

Wenwei Guan

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Wenwei Guan The right of Wenwei Guan to be identified as author[/s] of this work has been asserted by him/her/them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-36775-631-4 (hbk) ISBN: 978-0-36775-632-1 (pbk) ISBN: 978-1-00316-328-2 (ebk) DOI: 10.4324/9781003163282 Typeset in Galliard by Taylor & Francis Books

Dedicated to Emma, Adam, and Isobel

Contents

Preface Acknowledgments 1 2 3 4 5

6 7

The Origin of Copyright: Expression’s Onto-Epistemological Dynamics in Historical Perspective

viii x

1

Copyright Ontological Trilogy I: Internet Freedom’s AuthorshipReadership Ontological Dynamics

44

Copyright Ontological Trilogy II: Secondary Creation and Fair Dealing’s Ontological Author Dynamics

68

Copyright Ontological Trilogy III: Contract Override’s Entrepreneurship-Readership Ontological Dynamics

93

Technology as the Copyright Onto-Epistemological Force: Technological Driving Force and Copyright Onto-Epistemological Integrity

118

Trade as the Copyright Onto-Epistemological Mechanism: Free Trade Proliferation and Copyright Onto-Epistemological Integrity

153

Copyright Onto-Epistemology: Knowing Is Being

183

Index

192

Preface

Contemporary copyright was born in a heroic era of human history when technologies facilitated idea dissemination through the book trade reaching out mass readership. The classic Gutenbergian ontological dynamics that structure copyright protection between author, publisher, and the user public around the expression, dissemination, and use of “ideas” perceives the beauty of independence, autonomy, and the power of creativity but comes with the inevitable price of ontological isolation. The evolution of copyright entering the modern era in form of the Statute of Anne, to going global between the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and going digital via World Intellectual Property Organization (WIPO) Internet Treaties reveals that the “expression” that copyright “protects” is enacted in entanglement with “the way” we “know, commercialize, and distribute” a “proprietary individual expression.” Central in the process of copyright evolution is an “onto-epistemological offset” that copyright’s knowing—originality’s delineation of creation and fair use/ dealing’s legitimization of unauthorized use—and being—protecting creations through trade with a balance of interests in mind, are not isolatable, but rather mutually implicated. While the classic strict determinism has been subject to an onto-epistemological challenge, the proliferation of global trade and advent of information technology show us the beauty and possibility of intra-dependence between copyright authorship, entrepreneurship, and readership, which calls for a fresh copyright onto-epistemology. The book structures its copyright jurisprudential critique around a nested trilogy of copyright onto-epistemology of protecting proprietary individual expression as knowing in being. While Chapter 2 examines the copyright ontological trilogy’s authorship-readership dynamics in tension between copyright and free speech, Chapter 3 examines the copyright ontological trilogy’s authorship dynamics between copyright and future creation in legitimizing user-generated content exceptions. Chapter 4’s examination of the copyright ontological trilogy’s entrepreneurship-readership dynamics in contract override issue completes the copyright ontological mini-trilogy critique of the tripartite authorship-readership-entrepreneurship ontological dynamics among copyright stakeholders. In the next chapters, Chapter 5 examines technology as the copyright onto-epistemological force and its implications for copyright digital reform, and Chapter 6 looks at trade as the

Preface

ix

copyright onto-epistemological mechanism during the intra-play between trade fragmentation and copyright digital reform. Together with the tripartite stakeholder ontological critiques, the examination of technology and trade’s epistemological implications in Chapters 5 and 6 completes the grand trilogy of copyright stakeholder, force, and mechanism. The book completes the copyright jurisprudential critique in Chapter 7 with a fresh copyright onto-epistemology of knowing in being building on critiques of copyright development’s tripartite stakeholders, driving force and evolution mechanism. According to the copyright onto-epistemology, proprietary individual expression’s copyright protection forms an integral part of our knowing in being—indeed an integral part of knowing and being, driven by the advances of technology through the proliferating trading frameworks. The book indeed suggests that, not only copyright, but also the law in general, and justice too, need to be onto-epistemologically balanced, as this is categorically imperative for being, which is the fundamental law of nature.

Acknowledgments

I would like to take this opportunity to sincerely thank the two anonymous reviewers whose critical comments and enthusiastic support to the book project lifted the analysis to a significantly higher level, from which I benefited a lot and for which I am very grateful. I would also like to thank Professor Karen Barad, whose swift response during sabbatical leave and direction to key references, as well as generous support, have encouraged my research significantly. Professor Barad’s brilliant agential realist critique of the “ethico-onto-epistemology” of knowing in being has been highly inspirational for my writing, from which I benefited a lot in structuring my critical analysis of copyright as knowing in being and the discursive intra-play surrounding expression, dissemination, and the use of ideas. I would like to thank Dr Xuhui Xu at Beihang University School of Law and Dr Guobin Cui at Tsinghua University School of Law for their insightful discussions as to the Third Amendment of the PRC Copyright Law, from which I benefited a lot. I would also like to thank editor Yongling Lam and the editorial team at Routledge, including the senior editorial assistant, Payal Bharti, the production editor, Daniela Amodeo, and the copyeditor, Driss Fatih, all of whose efficient and professional support impressed me so much while working on the manuscript. I am so grateful for their enthusiastic assistance. Last but not least, I would like to thank my parents, my wife, and my children, whose love and tolerance give meaning to this research. Their unconditional support offers the first and the most fundamental, although not academic, evidence of the onto-epistemology of knowing and being, which indicates the categorical significance of love and tolerance to knowing and being. Without my family’s support, this book would not have been possible. I am very grateful for their unconditional love and support. Wenwei Guan City University of Hong Kong Kowloon, Hong Kong SAR December, 2020

1

The Origin of Copyright Expression’s Onto-Epistemological Dynamics in Historical Perspective1

1.1 Copyright Goes Modern, Global, and Digital in Trade 1.1.1 The Intellectual History of Copyright Goes Modern, Global, and Digital Human intellectual contemplation of the universe as an integral part of practices in being should certainly be as old as the human species. Therefore, intellectual creation and protection therein can be traced back to a date long before our modern society. Although “inventive property” and “literary property” were “essentially defenseless in classical times,” known references to literary and intellectual piracy can still be spotted in classical writings, such as discussion of “false poets” and plagiarism in ancient Greek and Rome, indicating evidence of a conceptualization of creator’s property in intellectual.2 The most prominent example is Roman epigrammatist Martial who, for the first time, used plagium, a term that previously denoted kidnapping or “man-stealing” to include literary piracy.3 Other examples include year-long monopolies granted to chefs over particular creations in culinary arts in 500 BCE in Greek, a case of the ownership of a painting and the table on which the painting appears in first-century CE Rome, and Roman law, which offered “maker’s marks” legal protection. Although the history of intellectual property protection can be traced back to as early as ancient Greece and Rome, the first formal intellectual property rights protection is said to be a decree issued in Venice between 1544 and 1545 which protected copyright against piracy.4 Some research even suggested that, slightly earlier than that in a 1474 statue of the Venetian Republic, the very first lasting patent institution of the protection of intellectual property was set up already.5 It is commonly agreed, however, that the British Statute of Monopolies 1623 and the Statute of Anne 1710 are the origins of modern patent law and copyright law.6 It is worth mentioning here that the time when the British Statute of Monopolies and Statute of Anne marked the beginning of the modern intellectual property regime in about the early 18th century was also the time when the Industrial Revolution started in England and spread throughout Europe and North America. From 1760, as research shows, “the number of patents granted in England grew rapidly in direct relation to the Industrial Revolution.”7 Most importantly, the era around the Industrial Revolution was also the time when classical philosophers DOI: 10.4324/9781003163282-1

2 The Origin of Copyright such as Hobbes in 1651, Locke in 1689, and Rousseau in 1762 were constructing the social contract theory that marked the beginning of modern law. It was also around the same time that Sir Isaac Newton constructed modern physics as seen in Mathematical Principles of Natural Philosophy in 1687. Modern law defeats medieval mythology by replacing it with the cult of knowledge and thus defended the individual autonomy. Newtonian physics’ “strict determinism” laid down the modern foundation of classic epistemological belief in representationalism, the metaphysics of individualism, and the intrinsic separability of knower and known.8 In the way that Newtonian science offers the indispensable epistemological support to law’s modernization, the protection of intellectual property provides a perfect combination of the defense of individual autonomy and the cult of knowledge. It thus must be something more than a simple coincidence that it was also the time that capitalism came to dominance in the West and provided the main mechanism of industrialization throughout Europe and North America. Modern copyright law, therefore, will inevitably reflect the capitalist perspective of knowing in being, a Newtonian onto-epistemology born together with the Industrial Revolution and the rise of capitalism.9 When it comes to the copyright regime, although the Statute of Anne 1710 is commonly considered as the first copyright law in a modern sense in the UK and in the world, the original of copyright indeed can be dated back more than a century and a half before that.10 According to Patterson, the Statute of Anne was indeed England’s sixth copyright statute after the Star Chamber Decrees of 1586 and 1637, the 1643 and 1649 Ordinances, and the Licensing Act of 1662, which were in fact acts of censorship and acts for the book trade.11 The Statute of Anne, according to Patterson, whose provisions can be related directly to the 1662 Licensing Act, “was simply a trade regulation statute designed to destroy and prevent monopoly in the book trade.”12 The disorder in the book trade owing to the end of Licensing Act’s sanctions for the stationer’s copyright in 1694 and the great opposition to stationers’ monopoly limited to company members and the perpetuity of copyright finally led to the birth of the Statute of Anne. 13 Under the title, “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned,” the Statute of Anne was enacted in 1710. The Statute provided for two copyrights: the statutory copyright for all subsequent publications and the stationer’s copyright in published works to be phased out after 21 years. According to the Statute, the Author and his Assignee or Assigns “shall have the sole Liberty of printing and reprinting” book or books for a term of 14 years, and upon the expiration, “the sole Right of printing or disposing of Copies shall return to the Authors” for another term accordingly.14 Upon the expiration of the old copyright, the booksellers resorted to Parliament or courts through their battle for perpetual copyright between 1710 and 1774, through the Millar and Donaldson cases, after which copyright ceased to be a publisher’s right and became an author’s right for a limited term,15 thus establishing a modern copyright regime.

Expression’s Onto-Epistemological Dynamics 3 Anglo-American kinship certainly made possible the extension of the Statute of Anne’s great influence on American copyright law.16 Owing to the absence of the federal government’s power to enact national copyright legislation under the Articles of Confederation, the Continental Congress adopted a resolution in May 1873 “recommending the Several States to secure to the authors or publishers of new books the copyright of such books.”17 The Statute of Anne as a model for copyright laws was enacted by all of the 13 states, except Delaware, with New York being the last of the 12 states to comply, on April 29, 1786.18 The dominant idea of copyright as reflected in the preambles of the state copyright statutes “was the idea of copyright as an author’s right” that reflects the resolution that the Continental Congress had recommended, “to secure copyright to authors or publishers.”19 Together with recognizing copyright as author’s right, “the other three ideas—that copyright is to promote learning, that it is a government grant, and that it is to prevent monopoly— were also present in the state statutes.”20 The idea of recognizing copyright as a natural right of the author in the state statutes was reversed in a later federal statute where copyright was considered as “a statutory privilege, granted at the will of the government.”21 Going beyond being a model of the copyright law of the states, the Statute of Anne served as a model for America’s first federal copyright act, passed in 1790, which underwent major revisions in the copyright laws of 1831, 1870, 1909, and 1965.22 Although, in addition to protecting indigenous authors’ property interests, the early establishment of American copyright laws served to function as a declaration of cultural independence from Britain, inextricably intertwined with the construction of a distinct national identity,23 American copyright laws nevertheless rooted themselves firmly on the Statute of Anne. At around the time of the Statute of Anne 1710, most countries, including Denmark in 1741, the United States in 1790, France in 1793, and Germany in 1838, enacted copyright regulations to protect their nationals’ works. Copyright protection, however, remained somewhat isolated until Demark in 1828 offered foreign authors protection through reciprocal treaty arrangements with individual countries. France in 1852 extended copyright protection to all authors, regardless of nationality, which started the move to the international coordination of international copyright protection, which led to the 1886 Convention in Berne and the International Convention for the Protection of Literary and Artistic Works between 10 Berne Union countries. The Berne Convention was subsequently amended at Berlin in 1908, at Rome in 1928, at Brussels in 1948, at Stockholm in 1967, and at Paris in 1971. Changes required as to moral rights and formalities, probably also tolerance to local piracy, have barred the USA from joining the Berne Convention, and practically left room for American local press industries to develop for more than a century.24 The USA eventually joined the Berne Convention in 1988, one hundred and two years after its birth.25 Around the time when the USA joined the Berne Convention in 1988 is also a critical moment of international intellectual property development. In the 1970s developing countries focused very much on establishing new rules on a New International Economic Order (NIEO) that depend on greater access to technology protected by intellectual property rights in developed countries. Developed

4 The Origin of Copyright countries, however, have been very much concerned with the World Intellectual Property Organization (WIPO) system’s failure of providing effective protections to the interests of their technology-based and expressive industries.26 At around a critical moment “when the negotiations between developed and less-developed countries over the revision of the Paris Convention were deadlocked at WIPO,” the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) kicked off at the GATT Ministerial Conference at Punta del Este, Uruguay in September 1986.27 As one of the key “new area” negotiations in the Uruguay Round, the incorporation of intellectual property rights into international trade was quite controversial and divided between developing and developed countries.28 The WTO’s conclusion of the TRIPS negotiations finally incorporated the Berne Convention into the international trading framework, as all WTO members, whether a Berne Union member or not, “shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.”29 TRIPS incorporation thus sets the basic standards of copyright protection provided under the Paris Act 1971 of the Berne Convention as the point of departure. Building on this, TRIPS also addresses computer programs and data compilation, rental rights, terms of protection, performers’ rights, as well as the idea-expression dichotomy doctrine and the three-step test.30 In addition to updating the copyright protection standards, the incorporation of TRIPS also makes available the WTO’s enforcement mechanism as to enforcement, acquisition, and maintenance, as well as dispute prevention and settlement provisions to support the Berne Convention.31 For a little over more than a century and with the strong support of the WTO enforcement and dispute settlement mechanism, the Berne Convention has now truly gone global in trade. At around the same time of the birth of the WTO framework, advances in technology and broadband infrastructure development reshaped copyright no less significantly if not more strongly than that of printing technology did to the birth of the Statute of Anne almost 300 years before. As to copyright protection, it is much needed to “carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention,” and to “devise new exceptions and limitations that are appropriate in the digital network environment.”32 In response to the challenges of the digital age, the two 1996 “Internet Treaties” by WIPO signified the beginning of the digital era of modern copyright laws.33 Jurisdictions from the USA, Europe, and Asia responded enthusiastically, led by the US Congress’ enactment of its “most sweeping revision ever” to the Copyright Act of 1976,34 the Digital Millennium Copyright Act (DMCA) in 199835. As “part of the ceaseless struggle to keep up with the constantly evolving technology,” the DMCA is to “bring U.S. copyright law squarely into the digital age.”36 1.1.2 Individual Expression’s Proprietary Monopoly in Trade The brief historical account of copyright evolution above reveals a significant feature of copyright development that bears fundamental significance to our

Expression’s Onto-Epistemological Dynamics 5 analysis, i.e. copyright’s proprietary nature and evolution being rooted in its intimacy with commerce and trade. Indeed, copyright development from going modern, to going global, to going digital has an intrinsic business consideration. As early as in the Middle Ages, according to Bugbee, from the 11th century onwards, “the acceleration of technological development,” together with city-state revival commerce and political centralization, facilitated “a growing intervention of governments in economic affairs.”37 Monopolies, which were often vested on gilds in certain economic activities, and importation franchises “were extended in an effort to stimulated industry and commerce in various states and localities,” to reward royal favorites or increase State revenue.38 Similar importation franchise in England, exclusive grants extended in France, Germany, and Eastern Europe, and similar awards monopolies from Italian city-states governments during the later Middle Ages were government efforts sought to promote industry.39 According to Bugbee, “[t]his policy of industrial stimulation by the State in the later Middle Ages and early Renaissance, while unconcerned with originality, probably facilitated the protection of intellectual property later.”40 The decline of the low esteem attached to manual or slave labor and waning distinction between the liberal vs “servile” arts, the introduction of the printing press to Europe, and the possible spread and revival of Roman law over Europe, facilitated the advance of the modern patent and copyright law.41 Moreover, the pre-modern copyright censorship’s emphasis was placed more on securing monopoly rather than on facilitating intellectual dissemination was in fact modern copyright’s origin. Justice Kaplan’s account of copyright’s early history stretched back further to the development of British Stationers’ Company before the Statute of Anne. The historical account indicated that the communications revolution started by Gutenberg, a technology joined with “impulsion of various forces, including the economic and literary,” facilitated the birth of modern copyright regime.42 Kaplan’s examination indicated, at its early evolution, that the intimacy between copyright and censorship was the key that facilitated the birth of the modern copyright regime under the needs of regulating book trade.43 Supported by technological development, commercial success in literary creation, although facilitated by a decline of low esteem attached to manual or slave labor, was indeed founded on the control of censorship, which is indeed copyright’s original sin. This pre-modern attention to the commercial value of intellectual creations has certainly survived and been carried on through upon copyright’s beginning of the modern era, as the Statute of Anne that inaugurated the copyright modern era was indeed a book-trade regulation. “Copyright Hero” Patterson’s seminal work, Copyright in Historical Perspective, laid down a solid historical account of the nature of the copyright and the dynamics among copyright stakeholders. According to Patterson, copyright is not a legal concept that“ha[s] the degree of consistency necessary for a unified whole,” but is rather a legal concept “consist[s] primarily of a series of fragmented rules.”44 According to Patterson:

6 The Origin of Copyright Copyright began in the sixteenth century as a device for maintaining order among members of the book trade organized as the Stationers’ Company. Supported by laws of press control and censorship, it developed and existed as the private concern of these guild members for a hundred and fifty years. As such, it was the basis of a monopoly in the book trade.45 Almost as did the Italian city-states’ grants of monopolies in stimulating commerce and industry, the Statute of Anne’s fundamental consideration was to regulate book trade order. For sure, the Statute of Anne, as it is known, was construed as providing for an author’s right. Its purpose, however, “was to provide a copyright that would function primarily as a trade regulation device—acting in the interest of society by preventing monopoly, and in the interest of the publisher by protecting published works from piracy, as did the stationer’s copyright.”46 According to Patterson, the Statute of Anne “was not primarily a copyright statute,” but rather “was basically a trade-regulation statute.”47 Patterson pointed out: The Statute of Anne can thus best be understood as a trade-regulation statute directed to the problem of monopoly in various forms. It dealt with the monopoly of the Stationers’ Company itself by making copyright available to all persons. It dealt with the monopoly of the booksellers by substituting a twentyone-year copyright for the perpetual copyright. It intended to prevent future monopolies of the type of the booksellers’ by limiting the term of future copyrights. And it did not disturb the printing patent, which had ceased to be a problem of monopoly. When analyzed in this way, the statute emerges as a comprehensive, intelligible scheme for regulating the book trade.48 Therefore, the Statute of Anne historically was the product of trade to regulate trade. Indeed, Patterson argued that, copyright law “can be viewed most usefully as statutory unfair competition based on the misappropriation rationale” functioning “to protect the copyrighted work against predatory competitive practices,” and that copyright’s constitutional purpose of promotion of learning “is best served by encouraging the distribution of works.”49 Copyright development, from pre-modern to the modern era, implied a strong commercial implication and instrumental consideration for trade regulation. Going beyond its attention on domestic book trade in Statute of Anne era, copyright development has indeed deeply intertwined with regional and global trade evolution ever since copyright’s birth into the modern era. In “The Copyright Divide,” Peter Yu’s “cross-cultural, cross-systemic, cross-temporal, and cross-sectoral” analysis of the three stories on copyright piracy in eighteenth- and nineteenth-century America, twentieth-century China, and twenty-first-century cyberspace indeed shed lights on the copyright-trade dynamics.50 Yu concluded that there exists a “copyright divide” between the stakeholders and nonstakeholders in the copyright system, and “extensive copyright piracy can be seen as a battle between the stakeholders and nonstakeholders over the change and retention of the status quo.”51 Inspired by the USA’s successful shift from the one

Expression’s Onto-Epistemological Dynamics 7 of the biggest pirating nations to a forceful advocate of copyright protection, Yu indicated optimism about a happy ending if the copyright divide between right holders and users can be ironed out.52 Whether it is a happy ending, as the almost two-decade-old research predicted, remains unanswered, but the detailed historical account on the copyright divide’s tie with copyright’s trade throughout history bears fundamental importance to our analysis. While the Recording Industry Association of America (RIAA)’s actions against university students and other online piracy certainly have music industry’s trading interests,53 the USA’s strong-armed pressure against China in 1990s upon copyright industries’ lobbying was a trade talk tactic for more market access.54 Even back in eighteenth- and nineteenth-century America’s shift from piracy-engaging to copyright-advocating force, the USA’s denial of foreign, particularly British, copyrights was mainly for the purpose of protecting local authors’ interests in defense of foreign trade pressure.55 Central to this copyright divide evolution from eighteenth- and nineteenth-century America book piracy, to twenty-century Chinese software piracy, to twenty-firstcentury cyberspace piracy, copyright trade has always been the key contention. Trade is indeed the continuous platform for copyright evolution and the central stage of the interaction between the stakeholders among author, publisher and user. Copyright’s fundamental attention to the proprietary interests relying on trade will inevitably develop a certain desire for monopolized control. The US Constitution clause necessitating the promotion of the Progress of Science, according to Patterson and Joyce, includes three doctrinal imperatives of copyright: the promotion of learning, securing the author’s right to profit, and the enhancement of the public domain.56 However, the author’s right to profit has constantly evolved. From a historical perspective, both England and American copyright statutes from 1790 onwards have seen an expansion of the copyright monopoly where the right to “print, reprint and publish” evolved to “a right to reproduce a book for commercial purposes by making multiple copies on a printing process for the market.”57 The monopoly expansion eventually, according to Patterson and Joyce, is “a transformation of copyright from a monopoly for competitive, market place purposes only (‘monopoly for the market’) into a monopoly of the work per se or for all purposes (‘monopoly of the work’).”58 While “the monopoly for the market” is the copyright owner’s remedy against a competing publisher who pirates it, “the monopoly of the work” is the owner’s right to “prevent others from any form of copying, not just multiple reproduction,” even those activities “in no way adversely affects the market for the book.”59 The historical evolution of the expansion of copyright’s monopoly indeed leads to copyright’s original sin, where the interest of copyright is laid down for control instead of a free individual’s proprietary expression. Copyright was more for control than dissemination of literary creation, and more for individual proprietary interest than public learning. This copyright original sin perfectly coincides with Patterson’s categorization of “the danger of monopoly from the publisher rather than the author,” which is one of the three “forgotten ideas of copyright” revealed in the classic Copyright in Historical Perspective. 60 Later development of the Statute of Anne’s promulgation and modern copyright’s further development, which increased recognition of the author’s

8 The Origin of Copyright interests in copyright, unfortunately, has not been able to counterbalance this danger of monopoly from the publisher, which leads to the persistence of the original sin in one way or the other. Together with copyright evolution’s fundamental attention to trade and commerce, we have seen copyright monopoly expansion transforming from “a monopoly for the market” into “a monopoly of the work per se or for all purposes.” Ginsburg indeed noted the development and suggested that the expansion of copyright protection evolves in tandem with the “changing status of authors in the nineteenth century, from imitative craftsmen to professionals conscious of their unique individuality,” an expansion that “had at least as much, if not more, to do with contemporary economic pressures.”61 Ginsburg in fact elaborated it fair detailed that: If the first copyright statute was limited to “printing, publishing and vending” when it was enacted in 1790, the English-language book trade perhaps defined the relevant market for works of authorship. Subsequent statutory expansions would reflect, then, the recognition that substantial markets for translations and dramatizations also existed, or had developed. The reason for statutory expansion would derive to some extent from the labor theory of protection: having realized that the first authors’ labors bear fruit through others’ translations and dramatizations as well as through reproductions, Congress would have determined that these fruits should be reaped by the authors, rather than by third parties. But this rationale does not explain why third party translators and dramatists, who also labored, owe tribute to the initial authors. Some additional concept of the nature of initial authorship may be needed to fill the gap between protecting the first author’s own labors, and prohibiting others from adding their labors to the first work. The personality concept of authorship may supply the link from reproduction rights to derivative work rights.62 Ginsburg rightly recognized the change and suggested, together with increasing acceptance of the “personality” concept, that courts showed increasing solicitude for plaintiffs’ labors,and a corresponding disapproval of defendants’ free riding on those labors.63 Although it is hard to prove “a causal link between a personality perspective on authorship and a broader scope of rights,” according to Ginsburg, “contemporaneously with the rise and judicial acceptance of the personality approach came a different concept of what constituted the author’s protectable creation.”64 Moreover, this different concept of author protection leads “to extension of the scope of copyright protection from mere security against reproduction to control over derivative works as well.”65 Therefore, building on the historical dynamics between copyright’s original sin of censorship to its modern proprietary control of competition, copyright as the author’s proprietary interest of expression, its evolution has been implicated with the development of trade from local to global, to digital. Has copyright’s transformation from premodern censorship instrument to modern regulation of book trade order based on the author’s creation for public learning really removed the original sin of censorship? Would originality bar development, or the Classicism vs Romanticism authorship

Expression’s Onto-Epistemological Dynamics 9 struggle, or fair use, the three-step test, and even the UGC exception evolution to a certain extent reflect the function of censorship? The very first question, however, is the onto-epistemological dynamics between author, publisher, and user.

1.2 Copyright’s Onto-Epistemological Dynamics and Complexity 1.2.1 Copyright Author and Inventor’s/Investor’s Ontological Dynamics Copyright’s going modern, global, and digital in trade implies a fundamental attention to the commercial interests of intellectual creation and at the same time necessitates monopoly control to be structured around intellectual creation for competition purposes. However, the nature of ontological control of the copyright regime has been revealed by classic copyright scholars and postmodernist philosophers differently. As classic copyright scholar Patterson argued, the Statute of Anne’s change of copyright protection from book trade members’ private copyright into corresponding statutory right for the authors was an “ill-considered transformation.”66 In his critique of the “forgotten ideas of copyright” from historical perspective, Patterson argued that copyright history has been misconstrued, which results in a failure of giving due recognition to the author’s “creative interest” that “has played a major but unsuspected role in the law of copyright.”67 According to Patterson: To give explicit recognition to the author’s creative interest would aid in placing other ideas of copyright in proper perspective. This is the primary lesson of history. The two most important of these ideas—that copyright is a monopoly, and that it is a natural right—both assumed undue significance in copyright development and obscured the basic point that copyright is fundamentally a trade-regulation device to protect intellectual property, necessary because of the uniqueness of that property. The question is not what rights copyright protects in the light of history, but what rights it should protect in view of its purpose and function.68 As Patterson argued, moreover, contemporary copyright has taken on new dimensions of “freedom of the press and speech rather than press control and censorship,” which is different from early maintenance of book trade monopoly order or a small group’s copyright control. Patterson therefore continued that: … the problem of copyright today is how best to reconcile the interests of three groups—authors, who give expression to ideas; publishers, who disseminate ideas; and the members of the public, who use the ideas.69 Patterson argued accordingly, “while a copyright owner has a right as against an economic competitor to the exclusive reproduction of a work” and “an author retains an inalienable right to protect the integrity of his work and his reputation in connection therewith,” “the right of individuals to use of a copyrighted work for personal, private, or reasonable uses shall not be impaired.”70 This classic

10 The Origin of Copyright Gutenbergian copyright structure, after the Statute of Anne’s positioning the author to the centre of literature’s creation, achieved its modern form to benefit public learning with publishers’ dissemination support through trade. Within this Gutenbergian structure of copyright, the author is undoubtedly the centre, the first mover, or foundation of the regression of copyright creation, which justifies the authorization, utilization, transaction, and transformation or adaption of the individual’s proprietary expression. From a critical or postmodernist perspective, however, examining copyright development from granted privileges to the author’s private rights against its historical background, Foucault argued that, “the notion of ‘author’ constitutes the privileged moment of individualization in the history of ideas, knowledge, literature, philosophy, and the sciences.”71 Drahos suggested that, from a historical point of view, “[i]ntellectual property rights are a distinctive form of privilege that rely on the creation of a common disadvantage.”72 According to Drahos, proprietarianism, which holds that “ownership privileges should trump community interests”, has strong links with individualism and is “deeply involved in a complex causal process that results in a pattern of increasing individual ownership of abstract objects.”73 Through our legal protection, any idea or knowledge that an author holds and that becomes intellectual property will disappear from the public domain and be under the author’s control, by whose will its change or future development is blocked from the public. Thus, Foucault argued that “the author is the principle of thrift in the proliferation of meaning” through impeding “the free circulation, the free manipulation, the free composition, decomposition, and recomposition.”74 Intellectual property in general, or copyright in particular, is, then, a regime of the author function through a constant return to the original authenticity of the author to establish an eternal authority. Both classic Patterson and postmodernist Foucault raised an ontological issue of copyright, i.e., how copyright constructs the ontology of being by protecting author’s knowing. Indeed, deeply rooted in the structural and post-structuralist inspiration, Mark Rose in his seminal piece Authors and Owners suggested that, “copyright is not a transcendent moral idea, but a specifically modern formation produced by printing technology, marketplace economics, and the classical liberal culture of possessive individualism.”75 Rose argued (ibid.) that: [Copyright] is also an institution build on intellectual quicksand: the essentially religious concept of originality, the notion that certain extraordinary beings called authors conjure works out of the air. And it is an institution whose technological foundation has recently turned, like a vital organ grown cancerous, into an enemy. Copyright developed as a consequence of printing technology’s ability to produce large numbers of copies of a text quickly and cheaply. But present-day technology makes it virtually impossible to prevent people from making copies of almost any text—printed, musical, cinematic, computerized—rapidly and at a negligible cost.

Expression’s Onto-Epistemological Dynamics 11 For Rose, then, copyright is a social construction facilitated and made possible by the advance of the printing technology—a technologization of the social construction. From the critical or postmodernist perspective, indeed, the author is the centre, yet might not necessarily be the first mover of the social construction driven by technology, but rather a temporary detour individualizing knowledge taken from public that will be returned to the public upon copyright’s expiration. Although positioned at the centre of literature’s creation, the author, from a critical perspective, is not the end point of literature creation, but rather connected with the past at the moment of individualizing the knowledge of the public. The different ontological pictures of authorship lead us to the author’s historical evolution. In ancient and medieval times, the low esteem attached to manual or slave labor and the distinction between the liberal vs “servile” arts, certainly made legal protection of intellectual creativity unthinkable.76 The “author” in his or her modern connotation is the result of the development in the eighteenth century of a group of writers who attempted to secure the economic viability of living which “gave the concept of authorship its modern form.”77 Up until the Renaissance and neoclassical period, according to Woodmansee, the writer was still a mixture of a skilled craftsman together as an “inspired” agency linked to a higher muse.78 Development in eighteenth century gradually saw the departure from this arrangement in favor of the element of inspiration to be identified as emanating from within the writer himself, the “original genius.”79 As moments of inspiration moved from the margins to the center to be “credited to the writer’s own genius” in writing, according to Woodmansee, “from a (mere) vehicle of preordained truths—truths as ordained either by universal human agreement or by some higher agency—the writer becomes an author.”80 Recognizing the writer, as in Young’s seminal Conjectures on Original Composition in 1759, as one with the noble title of an author who “thinks and composes” “answered the pressing need of writers … to establish ownership of the products of their labor so as to justify legal recognition of that ownership in the form of a copyright law.”81 This shifting Renaissance and neoclassical conception of writer as a vehicle of ideas to one transforming ideas afresh as expression of his own, the “imprint of a living human soul,” has profound epistemological implication.82 The pleasure of reading, rather than coming from the reader’s recognition of himself in a writer’s representations, as neoclassical doctrine suggests, “lies instead in the exploration of an Other, in penetrating to the deepest reaches of the foreign,” an active “divination into the soul of the creator.”83 Moreover, this “first mover” of literature creation, going beyond a simple writer, associates closely with inventor or investor. On their shared basis of contributing to public learning and science, Lord Camden in Donaldson v Becket listed Bacon, Newton, Milton, and Locke together and treated author and inventor with equal significance. According to Lord Camden, there is “no real and capital difference between … [investors] and authors; their merit is equal, they are equally beneficial to society, or perhaps the inventor of some of those master pieces of art which have been mentioned have there the advantage.”84 Lord Camden pointed out that:

12 The Origin of Copyright If there be any thing in the world common to all mankind, science and learning are in their nature publici juris, and they ought to be as free and general as air or water. They forget their Creator, as well as their fellow creatures, who wish to monopolize his noblest gifts and greatest benefits. Why did we enter into society at all, but to enlighten one another’s minds, and improve our faculties, for the common welfare of the species? … Providence has taken care that there shall not be wanting the noblest motives and incentives for men of genius to communicate to the world those truths and discoveries which are nothing if uncommunicated. Knowledge has no value or use for the solitary owner: to be enjoyed it must be communicated.85 Moreover, it is also important to note that, in the Constitutional Provision at the Constitutional Convention convened in May 1787, the copyright clause also provides for patent, which obviously confirms the equal significance between author and inventor epistemologically. “The inclusion of copyrights and patents in the same clause,” according to Patterson, denotes “that the right in both instances was an economic one.”86 Therefore, authors or inventors occupy the center of the “true” enjoyment of the intellectual creation. Different from users and consumers’ “interests” on creative works, according to Merges, “authors and inventors should have rights: strong, deep claims that take precedence over mere interests.”87 Regarding authors’ and inventors’ true legal rights, Merges acknowledged that: must be balanced in a number of ways: by limits on appropriation, as described by Locke, Kant, and Rawls, and as given expression by the midlevel nonremoval and proportionality principles; by the society’s right to tax the proceeds of creative work; and by users’ rights, in some cases. Nevertheless, I believe the position of creative persons should be a privileged one when it comes to the works they create. The most appropriate and most sensible way to embody this is to grant those persons a true legal right.88 Consequently, together with copyright historical development showing an expansion from monopoly for the market to a monopoly of the work as Patterson and Joyce indicated,89 copyright first mover coverage indeed eventually goes beyond author to investor. In the common law context, for example, the UK’s Copyright Act 1956’s strategic division between “true authors’ rights” and the neighbouring or related rights of investors was replaced with a “grossly misshapen definition” of authorial creation, treating authors and investors “indiscriminately” in the Copyright, Designs and Patents Act (CDPA) 1988.90 This shift, according to Cornish, Llewelyn, and Aplin, “is typical of that old strain of common law thought which sees no difference of kind between true creators and investors in the creations of others; and which is inclined to prefer the latter to the former.”91 On the one hand, this change might have reflected the need of industrial development, in particular on the development of the sui generis right protection of the database industry, which shows the industrial dimension of the ontological isolation of authorship.92 On the other hand, it signals the convergence between

Expression’s Onto-Epistemological Dynamics 13 Classicism and Romanticism, or between European culture and the American culture of copyright, with Romanticism triumphing. Looking at the copyright regime either from Patterson’s classical or Rose’s critical perspective, the copyright protection of the author’s proprietary interest of expression mandates creator’s an ontological isolation from either the user or publisher. Later technological advances have allowed investor of neighbouring or related rights to be sheltered ontologically under the same umbrella. Upon integration of Patterson’s classic and Rose’ critical perspectives, we have an immediate question as to the coverage and depth of the ontological isolation of authorship. Does copyright protect all the literature creation of the author, the first mover of future creation in a classical sense, or the temporary detour connecting the past and future from a critical perspective? 1.2.2 Copyright Originality Qualification’s Epistemological Implication Not every intellectual contemplation of an author can be protected under copyright, as there lies a fundamental idea expression dichotomy doctrine suggesting that copyright protection covers expressions, not ideas per se. 93 This classic idea-expression dichotomy doctrine has been long established in national law, such as the US Copyright Act of 1976 and international law, such as the WIPO Copyright Treaty of 1996.94 This doctrine was developed through early common law cases and well illustrated in Baker v Selden and Kenrick v Lawrence. 95 Indeed, as early as in Donaldson v Becket, which confirmed the Statute of Anne’s inauguration of copyright’s modern era, the House of Lords touched upon the issue of the idea-expression dichotomy: If I copy a manuscript, says he, and publish it, I am liable to a civil action; if I steal a book, to a criminal one; the one is simply taking ideas, the other a chattel. But, argues he, what property can a man have in ideas? whilst he keeps them to himself they are his own, when he publishes them they are his no longer. If I take water from the ocean it is mine, if I pour it back it is mine no longer.96 Historically, it indeed was the expression, the product where the economic interest dwells rather than ideas as such, that required protection, as copyright protection “was a protection against copying, and not against use.”97 In confirming copyright as “an engine of free expression,” the US Supreme Court pointed out that copyright’s protection of expression “supplies the economic incentive to create and disseminate ideas” but “establishing a marketable right to the use of one’s expression.”98 As Ginsburg pointed out, “unprotectable ‘ideas’ and ‘facts’ are not epistemological concepts but legal conclusions; the scope of the reproduction right turns on notions—often unarticulated and unproven—of appropriate competition.”99 Indeed, the distinction between idea and expression sits at the centre of tension between an author’s proprietary interest over the information expressed and the public’s right to access information. Offering copyright protection beyond

14 The Origin of Copyright expression to the ideas expressed would copyright facts or information per se and repeat the “flaw”—as the US Supreme Court pointed out in Feist—of the sweat of the brow doctrine’s extending copyright protection in compilation beyond selection and arrangement to the facts themselves.100 The copyright originality qualification— the fundamental “sweat of the brow” doctrine in particular—offers instrumental support to this epistemological filtering. Therefore, not all literature expressions that emanate from the author, whose monopoly will generate commercial profits, can be protected under copyright. There exists a magic word called “originality.” The originality bar, delineated under the over-a-century-old “sweat of the brow” doctrine entailing “what is not copied is original,” is still a good one at least in common law world.101 However, a low originality bar might prevent from accommodating possible secondary creations’ challenge against original copyright works, as “the application of a low standard of originality to a work that is based on a pre-existing copyrighted work may, ironically, run contrary to the aims of semiotic democracy.”102 Similar to the USA’s post-Feist development, Canada’s post-CCH development has seen the bar of the originality test going beyond the “sweat of the brow” doctrine, and, arguably, public policy considerations have come into play.103 In academic research, similarly, Umbreit’s venture ascertaining the nature of the property interest involved in copyright distinguished works of “artistic” skill from works of drudgery and suggested “the proper classification of the legal protection” given to works of drudgery would seem to be under law of restitution.”104 Umbreit suggested: What the infringer of a work of drudgery takes is entirely different from what an infringer of a work of artistic skill takes. The business values which are appropriated in the latter case fall into two classifications: first, ideas; and, second, popularity value. The only workable concept of the nature of the property rights covered by a “copyright” of works of “artistic” skill must be based on a recognition of these business values as being likewise the fundamental legal “rights” contained in a copyright.105 Umbreit argued that “it would be better to treat popularity value as the primary element in copyright and to avoid attempting to set out the metes and bounds of plots, situations and characters.”106 This to some extent not only serves as a perfect confirmation to the idea-expression dichotomy principle, but also represents a preference for Classicism over Romanticism in the creation of literature. According to Umbreit’s inspirational reference, while “classicism assumed that literary excellence had some relation to scholarship… in conjunction with learning and culture,” Romanticism went to the opposite confirming originality not in scholarship and found the test of genius in originality, which “only the complete ignoramus could be completely original.”107 However, Classical vs Romantic authorship might not be able to reconciled with each other, and literature criticism has its own process of historical development—a process somewhat intertwined with copyright originality’s historical evolution. Justice Kaplan, for example, revealed a trend of copyright development in An Unhurried

Expression’s Onto-Epistemological Dynamics 15 View of Copyright—a shift from Classicism to Romanticism, the process of literary criticism’s less friendly attitude towards imitation and lower tolerance of imitative genius accompanying the more Romantic recognition of individuality as creativity and originality.108 As Kaplan pointed out in his historical account of the birth of the copyright: An indulgent attitude toward using other people’s works seemed increasingly out of keeping with the realities of the market. The business of publishing and distributing books had become bigger, more competitive, more impersonal; the stakes were higher, the risks more serious. In this atmosphere there would be ever greater anxiety about marking out metes and bounds of literary ownership, and courts might be expected to respond to arguments about protection of investment.109 In an account of the 350 years of copyright history from the Stationers’ Charter of 1557 to the US Copyright Act 1909, Justice Holmes was listed by Kaplan at the end of the story of the evolution of Anglo-American doctrine about copyright.110 Justice Holmes’s insistence on individuality or personality, arguing that any work would qualify for copyright so far as it was a “personal reaction … upon nature,” according to Kaplan, “ha[s] an echo in it of the Romantic gospel.”111 The struggle between the protection of an author’s legitimate monopoly for the benefit of facilitating creation and limiting monopoly’s hindrance of knowledge and information flow has always been intertwined with the evolution of copyright throughout development. Early discussion as to the “low authorship works” protection issue in information industry provides a good example. In general, “low authorship works” refer to works of “personality-deprived information compilations” endeavors, such as directories, indexes, and databases.112 Under the “overextended” regime, according to Patterson, copyright provisions for cable television, computer programs, sound recordings, and live TV programming are “far removed from the ‘writings’ of ‘authors’ that the Constitution empowers Congress to protect.”113 For Patterson, the increase of the “neo-copyright”, “copyright for works of low authorship granted without regard to constitutional copyright policies” is unacceptable, as low-authorship works “need—and are entitled to—only limited protection against competitors, not plenary protection against users.”114 Patterson therefore argued that “it is desirable to remove low authorship works from the copyright statute and protect them with a trade regulation act.”115 In a somewhat related discussion, Justice Kaplan agreed that the rules of validity and infringement are correlative, and both turned on “originality,” a “psychological matter” of spontaneity or absence of copying, yet not “invention,” a “historical matter” of the production of something that did not exist in the prior art.116 However, according to Justice Kaplan, “novelty would in all events be a poor criterion,” as it is a “difficult, perhaps an illusory, measure in the field of mechanical improvements, … [and] much harder would it be in literature or the other arts.”117 As to originality vs monopoly, Kaplan suggested:

16 The Origin of Copyright With the originality concept correctly installed as central, copyright appeared as relatively easy to achieve but as correspondingly modest in its pretensions to monopoly. This apparent modesty of the system attracts sympathy, and we find Judge Hand later suggesting to an incredulous patent bar that they make over patent on the model of copyright.118 This capture of originality’s psychological spontaneity nature reflects the heart of copyright’s onto-epistemology, in particular the Romantic understanding of copyright as the “personal reaction upon nature.” The underpinning individuality of the Romantic originality’s roots in personality indicates Romanticism’s emphasis on individuality, on Newtonian/Cartesian separability of knower and known. The struggle between Classical vs Romantic authorship, in particular its intertwining relation with copyright originality’s historical evolution, together with all this construction of authorship, originality, novelty, and monopoly around the author, indicates the complexity of copyright onto-epistemology. 1.2.3 Technology, Science and Copyright Onto-Epistemological Complexity Upon copyright going modern in the Statute of Anne era, the protection of the commercial interest of the individual expression has been constructed around the author with close reference to inventor and gradually covers investors during its evolution. During this process, the author has been qualified by originality regime, and copyright’s struggle or balance between the Classical vs Romantic authorship indicates a certain ambiguity of intellectual creation. While the tripartite dynamics among author, publisher, and user show copyright’s ontological uncertainty, originality’s qualification of author indicates copyright’s epistemological ambiguity. Along this evolution process, technology as the key driving force of knowledge has been one of the key factors of the birth, development, and evolution of the copyright regime, which shows the complexity of the copyright onto-epistemology.119 Technology, the key driving force of knowledge, has been one of the key factors of the birth, development, and evolution of the copyright regime. As the House of Lords articulated in Donaldson v Becket clearly that it was the “art of printing” and the “progress of science and erudition” that made copyright possible, a protection of authors’ labours “is not only important to the author, but also to the public.”120 Indeed, ever since the inauguration of copyright’s modern era, technology has been in a complex intertwining relationship with copyright development to support, facilitate, and even challenge the evolution of the regime of the proprietary individual expression. As for technology’s relation with copyright development, Goldstein pointed out that: Copyright was technology’s child from the start. There was no need for copyright before the printing press. But as movable type brought literature within the reach of everyone, and as the preferences of a few royal, aristocratic, or simply wealthy patrons were supplanted by the accumulated demands of mass consumers, a legal mechanism was needed to connect consumers to authors and publishers commercially. Copyright was the answer.121

Expression’s Onto-Epistemological Dynamics 17 Not only was technology the force that triggered the birth of copyright, but also, centuries later, evolving technologies such as photographs, recording, digital and internet “dramatically expanded the markets for mechanically or electronically reproduced entertainment and information, and increased the role of copyright in organizing these markets.”122 However, Goldstein also reminded us that, “these very same technologies, most dramatically abetted by the power of the Internet, are today testing copyright’s ability to fulfill that role.”123 Technology’s development, therefore, intertwines with knowledge dissemination and copyright protection with great complexity. On the one hand, Goldstein revealed the copyright-technology dynamics in examination of how US Congress addressed private copying issue in the process of revising the 1909 Copyright Act to deal with library photocopying, and in later amendments to the 1976 Act to deal with home videotapes and audiotapes.124 The examination suggests that US Congress’ delay and reluctance to deal with the private copy issue has different consequences to be borne by the stakeholders, in which “copyright owners suffer and consumer electronics companies benefit any time Congress postpones a decision on home copying.”125 With the proliferation of the “habits of free use,” “ideal, balanced laws” might not be able to catch up with “technology’s arrival in the marketplace,” and the “prospects for dislodging” the issues might diminish.126 Therefore, the evolving technologies structure and challenge the shifting balance of interests among various copyright stakeholders. Each new technology will inevitably be the battleground or point of balance between forces arguing for greater or lesser copyright protection, and the point of balance has never been a fixed one. During the process of the evolution, technology tends to do more to free copyright from intangible constraints for the benefit of users’ free access than the other. On the other hand, with technology’s support, copyright in particular or intellectual property in general have been functioning as a “de facto global consensus,” justifying “the information society” discourse which “further justifies the concentration of a type of knowledge production, governed by intellectual property laws.”127 Within this process, transnational corporations (TNCs) play a significant role in developing the global intellectual property rules. In the hyper-strong intellectual property rights ideology-dominated world, according to Drahos, “TNCs are unified by the belief they will do better” as that ideology enables those TNCs to invest in turning knowledge from a public good into a private good and to set the terms of access to it.”128 Therefore, the rise of technology might not always be positive to copyright development. “[W]hen the predominant global model of protection is via private property rights and corporate control,” according to Halbert’s critiques of the state’s role in the political economy of culture as intellectual property, there arises concerns as to access and ownership of cultural heritage, cultural creation, and democratic processes.129 Halbert argued: … The state in the context of culture and intellectual property serves a key function—in terms of enforcement and seeking to impose a national cultural identity upon the cultural creations that occur within its territorial boundaries,

18 The Origin of Copyright even in the face of global cultural flows. The state functions as a barrier and a method of halting flows within the more globalized understanding of a world in flux. The state’s role in cultural formation, historically as today, is designed to impose control over creative and scientific expression in an effort to establish a national cultural identity and then to protect the products of domestic cultural production in an international marketplace. The state’s interest in controlling the creative world of its citizens remains relevant even in a globalizing world.130 Throughout the historical development of the protection of individual proprietary expression, moreover, technology, knowledge, and copyright have been intertwined together with great complexity, revealing a more sophisticated onto-epistemological deficit in law and development discourse. As the brief copyright historical account above revealed, the time when the Statute of Anne marked the beginning of the modern copyright regime against the general social context of the spreading Industrial Revolution was also the time when Classical contractarian philosophers constructed the era of modern law through the Enlightenment movement.131 As a matter of fact, this was also the time of the inception of the modern conceptualization of development. The contemporary development paradigm that emerged right after the Second World War can be further traced back to the French and English Revolutions, when the idea of progression was first formulated.132 Research shows that development is not a natural process but rather a construction developed from the notion of the perfection of progress from the Enlightenment.133 The French and English Revolutions, in a historical period of the emergence of industrial capitalism and the modern economy, were the cradle of the contemporary development paradigm.134 In the Enlightenment and with the transition to capitalism from feudalism, the advances of the productive forces facilitated, for the first time in history, people’s imagination of “progress.”135 Moreover, the idea of progression was forged in “evolutionary terms,” which has been deeply intertwined with the “belief in linear progress, absolute truths,” social planning, and knowledge standardization.136 Starting from this linear notion of progression, history becomes an uphill movement from the savage to the civilized with an intention of its own. Differences between human societies then become “differences in their level of development.”137 From the way in which we categorize differences between societies as developing and developed, we found the logic of the perfection of progress that categorizes different technologies as advanced and backward in the TRIPS framework.138 Indeed, the notion of progression central to the contemporary development paradigm was born together with the Enlightenment—an era that revealed an intimate relationship between science, law, and development with science/ knowledge and development/progress as its twins. According to Trubek and Galanter, there is an “aspiration to science” among law and development scholars—a key belief in law and development studies as a neutral science, systematic research of which can allow us to discover a universal theory of the Third World’s legal reality.139 When this belief is subjected to strong attack on epistemological, practical, and

Expression’s Onto-Epistemological Dynamics 19 political grounds, the break with liberal legalism creates the self-estrangement of the law and development scholars.140 The development discourse, as a regime of representation, is indeed an ideology construction through the problematization of the Third World and poverty management, during which science and technology played an important role dividing developed from developing countries, according to technological advances and intellectual property.141 Therefore, Escobar argued that “development is the last and failed attempt to complete the Enlightenment” in the Third World.142 Similarly, Carty traced the legal theory crisis of the vacuity of the development rights concept to the alienation of the self since the Enlightenment.143 Alienation has its roots in a philosophy of physics from the early Renaissance—a Cartesian reduction of all human experience with the world and other human beings into an experience between man and himself and into logical relations between symbols.144 Development, therefore, is not a natural process but rather a construction rooted in the notion of the perfection of progress from the Enlightenment.145 As Bacon, the father of modern experimental science demonstrated, knowledge is power that knows no limit;146 the Enlightenment era, as the origin of modern jurisprudence, was a time when the cult of knowledge was built. It is also the origin of our belief that protection of intellectual property rights can “promote the Progress of Science and useful Arts” and is “conducive to social and economic welfare.”147 The Enlightenment, as a project “liberating human beings from fear and installing them as masters,” failed in defeating myths and become totalitarian, and in fact “the myths which fell victim to the Enlightenment were themselves its products.”148 The complexity of the intertwining relationship between science, technology, knowledge and intellectual property presents us with the complexity of the copyright onto-epistemology at a deeper level.

1.3 Copyright Onto-Epistemology: Knowing in Being 1.3.1 Intellectual Property Justification and Copyright Onto-Epistemology Deficit Although there is certainly no doubt that intellectual contemplation in the forms of either patent, trademark, or copyright, what we all call intellectual property, merits certain legal protection, the basis of intellectual property protection varies in academic literatures. Hughes, for example, argued that intellectual property could be justified with a theoretical synthesis merging Lockean labor theory with Hegelian personality theory.149 Drahos, however, regards intellectual property rights as “liberty-inhibiting privileges” and suggested that “talk about rights in intellectual property should be replaced by talk about privilege.”150 The central tension of intellectual property rights is also variously categorized. Some suggest that intellectual property internalizes a tension between rights and privileges consistent with the confrontation between the public and the private.151 Others perceived the tension of intellectual property as either a confrontation between private control over knowledge and public need for diffusion of knowledge,152 or an inherent tension between protection and limitation.153 From an economic perspective, Maskus

20 The Origin of Copyright suggested that intellectual property law reflects a tension between “static efficiency” requiring wide user access at marginal social cost and “dynamic efficiency” requiring incentives for innovation when social value surpasses development cost.154 No matter how the intellectual property tension is categorized, traditional property theories, intentionally or unintentionally, are the foundation of justifying the protection of intellectual property in general or copyright in particular. According to the TRIPS Agreement, intellectual property rights are recognized as “private rights.”155 Being private rights, these certainly afford intellectual property strong legal protection, because private property is as vital as, if not more vital than, life and liberty. In the US Constitution, for example, private property has been given the same significance as life and liberty and is protected from unfairly compensated appropriation by the government.156 Under this constitutional framework, patent rights have long been recognized as private property rights and given constitutional protection. In James v. Campbell in 1882, the US Supreme Court asserted that the “exclusive property in the patented invention … cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser.”157 As for copyright, the well-established “sweat of the brow” doctrine and its later development in the protection of databases no doubt clearly recognize copyright’s private property nature.158 The intellectual property regime, therefore, grounds itself firmly on traditional property rights theories, that of Locke and Hegel in particular. In CCH Canadian Ltd. v. Law Society of Upper Canada, for example, the Supreme Court of Canada directly built its discussion of the “sweat of the brow” doctrine on Lockean theory of “just desserts,” and at the same time its emphasis of originality signalled an implicit shift towards Hegel’s property theory.159 Locke and Hegel’s property theories, indeed, set the foundation of justification for intellectual property in general and copyright in particular. On the one hand, Locke starts his analysis of property from a “positive community.”160 For Locke, “the earth and all inferior creatures” are given by God to “mankind in common.”161 What Locke needs then is a tool—“labor”—to enable individuals to distinguish something from the common into his/her own without obtaining the consent of the others: Whatsoever then he removes out of the state that nature has provided and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature has placed it in, it has by this labor something annexed to it that excludes the common right of other men.162 Starting from a common which belongs to all, labor makes all the difference. It is labor that differentiates something from the commons and excludes the common rights of others, therefore transforming it into private property. The Lockean story of property is a labor-oriented theory. On the other hand, in contrast to Locke’s labor-oriented theory of property, Hegel’s is a free will-oriented property theory. He starts from “negative

Expression’s Onto-Epistemological Dynamics 21 community” instead of positive community.163 He begins analysis with an absolute, infinite free will. For Hegel, “the basis of right is, in general, mind; its precise place and point of origin is the will.”164 But the will is wholly abstract, undetermined and infinite, thus needs something external, “pure and simple…something not free, not personal, without rights” to render it objective. In this regard, Hegel’s theory of property is a story of “I own, therefore I am.” … A person must translate his freedom into an external sphere in order to exist as Idea….this sphere distinct from the person, the sphere capable of embodying the freedom, is likewise determined as what is immediately different and separable from him. … I as free will am an object to myself in what I possess and thereby also for the first time am an actual will, and this is the aspect which constitutes the category of property, the true and right factor in possession.165 Property for Hegel then is “the first embodiment of freedom.” Instead of labor, free will makes all the difference. Although for Hegel “occupancy”—possibly analogous to Locke’s “labor”—is necessary to ensure the embodiment of “free will” in a thing to make it “my property”—it is free will that is ultimately most important.166 Although different in approaches, Locke and Hegel shared with each other views on the significance and limit of private property rights. Both Lockean and Hegelian theories of property are stories of the birth of an autonomous self. Instead of “I think, therefore I am,” both Locke and Hegel imply “I own, therefore I am.”167 For Locke, the rights to private property are the foundation of his analysis of the governance framework and the thesis of separation of powers. Property is also the starting point and foundation of Hegel’s analysis of the Philosophy of Right. For Hegel, property is “the embodiment of personality,” and a person can only “exist as Idea” through “translat[ing] his freedom into an external sphere.”168 Furthermore, for both Locke and Hegel, property rights come from a separation: a break-up or dissolution of the relationship between the self and others which bears significant ontological implications for our research on copyright onto-epistemological deficit. This separation depends on a limit or a boundary—for Locke, this is labor, and for Hegel the infinite, abstract, free will— demarcating the self from others. On the one hand, the separation of the self from others, for Locke, was done through labor that “in the beginning” removed something from the common and made it private property. Thus labor here then, is a boundary between the self and others, between private and common. In this very beginning—the founding moment—labor, which is the self, something not common, was injected into the common. The injection of labor not only changes part of the common into private domain and extracts or detaches a part from a whole; but also separates the self from others and causes the dissolution of the relationship between the private from the public. This injection produces something that the self can defend against others—a limit of the self that excludes others, and is a basis for rights. Hegel’s theory of property, on the other hand, travels along much the same theoretical route to sketch the formation of private property.

22 The Origin of Copyright Hegel also grounded his framework of private property on a private, unique, finger-print-like element: “abstract, infinite, free will.” However, instead of starting with an idea of a “common,” Hegel started with res nullius, something that belongs to nobody. “Will” for Hegel serves exactly the same function as does Locke’s “labor.” The “will” is also a limit delimiting the self from others—an instrument separating something from res nullius and giving rise to a right, something independent from any other entity’s consent. The formation of property for Hegel is also a separating injection, a process that separates the self from the others. In this regard, property rights, and rights in general, all come from an ontological separation and dissolution of the relationship between the self and others. Certainly, authorship’s ontological separation from entrepreneurship and readership, originality bar’s separation of copyright expression from ideas and knowledge, echo Lockean and Hegelian property separation to a great extent. This separation of the self from others through acquisition of private property has two intertwined ontological implications for our examination, which travel far beyond this current study and penetrate contemporary intellectual property jurisprudence. On the one hand, upon the separation of the self from others, the self gains its true autonomy and makes possible the defense of singularity, which protects the self from being subsumed and consumed by the collective, the common.169 This separation thus challenges and prevents the collective from becoming an authoritative totality that limits and erases the individuality and autonomy of the self.170 It is also this separation that makes possible the independence of individuals from the family’s paternalistic power, as well as making possible the development “from Status to Contract” of modern law.171 Bentham argued, therefore, that “[p]roperty and law are born together and die together.”172 Hayek, too, emphasized that individual property is “the heart of the morals of any advanced civilization,” and its prior development is “indispensable for the development of trading,” whose adoption “marks the beginning of civilization.”173 Private property is thus argued to be the precondition of the development of liberal, democratic social political institutions.174 On the other hand, this separation of the self from others raises the possibility of self-alienation. As the self gains its true independence, the self becomes self-sufficient and alienated from others. When this property perspective is applied to intellectual property, creations and innovations are then viewed as highly individual intellectual endeavors, from which arises the flawed ontology of contemporary intellectual property philosophy.175 From a copyright perspective, copyright protection of the proprietary individual expression will inevitably separate the knower from the known, individualized knowledge—the knowing—from the public, and set author against the user, in which creates an onto-epistemological deficit of copyright. 1.3.2 Copyright Culture Diversity’s Onto-Epistemological Complexity General application of either Lockean or Hegelian property theory to recognize the proprietary interests of individual expression raises onto-epistemological myth of self-sufficiency, resulting in a separation of the knower from the known and individualization of knowledge—the knowing—from the public. Through the

Expression’s Onto-Epistemological Dynamics 23 ontological qualification regulating author and originality, the copyright regime also reveals onto-epistemological diversity and deficit. Indeed, Justice Kaplan revealed the struggle between Classical vs Romantic authorship or originality during early development copyright’s tension of keeping “attitude toward using other people’s works” with the market reality of the “business of publishing and distributing books.”176 There was indeed a shift in literary criticism from Classicism to Romanticism, which was less friendly to imitation and less tolerant of imitative genius accompanying the more Romantic recognition of individuality as creativity and originality.177 This is to a certain extent reflected in a classic struggle between the American vs European culture of copyright. Goldstein noted in Copyright’s Highway the contrast between the European culture of copyright vs the American culture of copyright. According to Goldstein, while the European culture of copyright “places authors at its center, giving them as a matter of natural right control” over the use of copyright works, the American culture of copyright centers on a utilitarian balance between the needs of copyright producers vs consumers, which marginalizes the authors. According to Goldstein: … this divide between the two cultures of copyright has consequence not only philosophically but also in the economic sphere, in the marketplace where literary and artistic works are bought and sold. This view holds that European lawmakers are perennial copyright optimists, who consistently treat copyright’s cup as half full and, to protect authors’ interests, will extend rights into every corner that might have economic value. American lawmakers, by contrast, are viewed as chronic copyright pessimists, who see copyright’s cup as half empty and do not extend rights against new uses of copyrighted works unless copyright owners can show they need them as an incentive to continue producing literary and artistic works.178 According to Goldstein, the distinction between the European and American perspective towards copyright is something more than symbolic. While the moral right is the well-known symbol of the European author’s rights culture, Goldstein suggested, fair use doctrine “symbolizes the more pragmatic American culture.”179 Goldstein explained: … Fair use is a hard-edged economic instrument that will excuse an unauthorized use of a copyrighted work as being a fair one any time it is too costly for the parties to negotiate a license. … Fair use operates [in the great majority of US court cases] on the pragmatic notion that half a loaf is better than none: without it, the copyright owner would get no revenues because the costs of negotiating a license are insuperably high, while the prospective user would for the same reason get no copy; with it, the copyright owner still gets nothing, but the user at least gets to make a copy.180 However, the contrast between European and American copyright culture might not be as significant as it appears to be. In his discussion of the “State, Rights, and

24 The Origin of Copyright Utilitarian IP Law,” Merges suggested that the conventional intellectual property dichotomy between so-called American utilitarian perspective vs European rightsbased natural law tradition on intellectual property law is largely “superficial.”181 “In fact,” Goldstein similarly suggested, “putting the emblems of moral right and fair use to the side, the two cultures of copyright have much in common,” which Goldstein attributed to the shared “practicalities of the marketplace” as well as the “laws’ operational premises.”182 Conversely, “the notion of two diverging cultures of copyright,” Goldstein pointed out, “has made for unnecessary obstacles in international trade,” and more importantly, “has been used to rationalize protectionist postures in international copyright trade.”183 Moreover, American copyright culture’s pragmatic emphasis on the market interests of the individual expression and European copyright culture’s attention to the reification of author’s personhood can also be reconciled through critical recognition of copyright’s dual nature of an ontological unity. Rose argued that copyright institution is not only “deeply rooted in our economic system,” but also “deeply rooted in our conception of ourselves as individuals with at least a modest grad of singularity, some degree of personality,” which is linked with our sense of “privacy and conviction” that is “essential to limit the power of the state.”184 Rose’s argument here to a certain extent reflects the “dual nature” of copyright, including both economic interests and moral rights interests of individual expression, the balance of the Classicism and Romanticism of literary creation, and the integration of the European and American culture of copyright. Rose thus suggested to “abandon copyright as an archaic and cumbersome system of cultural regulation.”185 From an ontological perspective, while the American approach’s emphasis of market interests links better metaphorically with Lockean “fruits” of labor, and the European approach’s attention to personality reflects better Hegelian externalization of “free will,” they both meet at the copyright’s onto-epistemological deficit. No matter whether grounded on Lockean or Hegelian theory, copyright protection of proprietary individual expression inevitably separates the knower from the known, separates individualized knowledge—the knowing—from the public, and sets the author against the user. In fact, European vs American cultural differences as to copyright can certainly have an epistemological implication. Shifting from ontological quests of what texts were to an epistemological critique of what texts did, with a focus on seventeenth- and eighteenth-century epistemological debates among innatist vs empiricist perspective to copyright, Enderle argued that: … the rise of modern copyright law was accompanied by a radical transformation in ideas about communication, which linked literary and economic value to the least communicative aspects of a text. Innatists had imagined language as a natural, transparent extension of human thought, but eighteenth- century copyright law instead enshrined a way of thinking about what texts do that foregrounds and privileges the moments when meaning escapes us, when communication breaks down—moments of interruption in the smooth functioning of language.186

Expression’s Onto-Epistemological Dynamics 25 Enderle’s research offers some interesting insights, both ontologically and epistemologically, into the nature of copyright. From a practical perspective on the one hand, the quest reveals the contribution of the advance of “radical transformation in ideas about communication,” in terms of technological possibility too, facilitated the rise of the modern copyright regime. Likewise, the advance of digital technology will certainly do the same. Theoretically, on the other hand, the quest of the intertwining relationship between the author, publisher, and reader goes further to the Classicism vs Romanticism culture divide and its underpinning ontology and epistemology of the nature of copyright. According to Enderle, while innatist Young, whose seminal text on authorship and originality set out the foundation of Romanticism in Great Britain and Germany, empiricist Locke’s ideas laid down the Lockean labor theory of property that distinguishes forms from impressions to establish the foundation of modern copyright.187 This intertwining relationship between innatism vs empiricism and Classicism and Romanticism indeed touched both the ontological relation between Romantic author and Classic reader, as well as the epistemological relation between empiricist publisher and innatist author/readers. Enderle argued that: Innatists emphasized the universality of ideas and conceived of texts as tools of communication that functioned smoothly and transparently to link authors to readers; empiricists drew attention to ways those tools broke down, with the hope of repairing them; and copyright perpetualists embraced the tools’ breakdown as a way of turning ideas and the texts that expressed them into things. … all these three [competing points of view] articulate useful ways of thinking about the encounters between author, text, and reader. For copyright perpetualists, an uncommunicative text speaks to us of foreign experiences in an alien language; for empiricists, a text speaks in a half- learned tongue, tantalizing in its partial coherence; and for innatists, the text whispers familiarly in our ear, transparent in its meaning and obvious in its intent. Our paths through these modes of encounter need not be unidirectional, nor should they be, since each is latent in the other two. Only by a long series of turns and returns through these modes do we learn what texts do.188 In Bleistein v Donaldson Lithographing Co., Justice Holmes pointed out that individuals are “not free to copyright the copy” of an original object in nature because “the copy is the personal reaction of an individual upon nature.”189 The statement that an author’s proprietary expression, as an individual’s “reaction … upon nature,” is “personal” which is guarded by copyright from unauthorized copying, has rich onto-epistemological implications. The author’s proprietary expression, upon copyright protection, ontologically separates the author from others, including both publisher and reader. Epistemologically, the expression is an empiricist copy, a reaction upon nature, yet remains personal, confirming the Romanticist doctrine. Copyright, while the result of personal expression, is most likely an empiricist copy, the practice of knowing nature as the being contains a perfect onto-epistemological process of the expression of knowing in being.190

26 The Origin of Copyright Justice Holmes is to a certain extent an empiricist Romanticist, as he is the representative listed at the end of the evolving story of the Anglo-American copyright doctrine in Justice Kaplan’s account of the over three-century-long evolution from the Stationers’ Charter of 1557 to the US Copyright Act of 1909. Justice Holmes’ adherence to individuality or personality, suggesting that any work would qualify for copyright so far as it was a “personal reaction … upon nature,” according to Kaplan, “ha[s] an echo in it of the Romantic gospel.”191 The distinction between Lockean “fruits” and Hegelian “free will”, or the wax and wane of Classicism vs Romanticism, or the contrast between the diverging European from American copyright culture, or the contrast of the innatist vs empiricist, might not appear to be all that significant. Rather, the seemingly contrasting perspectives between either Lockean vs Hegelian property theory, American vs European copyright culture, Classicist vs Romanticist authorship, or innatist vs empiricist originality, are indeed talking to each other on the same page and mutually intertwined in copyright evolution. These contrasting values can indeed be united, in particular from a copyright ontological and epistemological sense. An overhaul of copyright theory will be needed to be able to include all these three: the innatist author, the empiricist reader, and the perpetualist publisher. 1.3.3 Copyright’s Onto-Epistemological Balance and Knowing in Being The contrast between American and European copyright culture indeed echoes the different approaches of intellectual property protection between Lockean “fruits” and Hegelian “free will”, which merit a unification as do Classical and Romantic onto-epistemology. Indeed both Lockean and Hegelian theories agree with each other not only in the justification of individual enjoyment of the proprietary expression, but also in the limitation of that individual proprietary interest for the consideration of others. Indeed, both Lockean and Hegelian theses implicitly or explicitly imply limitations on owning private property. Locke, for example, sets a clear limit on private property rights by “law of nature” to the extent “as much as any one can make use of to any advantage of life before it spoils, so much he may by this labor fix a property in; whatever is beyond this is more than his share and belongs to others.”192 This clearly indicates Locke’s limit on property rights, which sets the measure of property nature by the extent of people’s labor and the convenience of their life. Locke calls this the “common law of nature.”193 Most importantly, any property beyond this limit belongs to others, which means that the limit of private property rights comes from the needs of others. For Hegel, the modifications of property are determined in the course of the free will’s relation to the thing from “taking possession,” to “use,” then to “alienation,” upon which the free will that was put into an external thing is “back from the thing into itself.”194 While acquisition is positive, and use is negative, alienation is a negation of the negative, which demonstrates the final and infinite judgment and authority of the free will on property. This is true inasmuch as only free will’s infinite judgment or authority over the property can give the self the right to alienate it. Moreover, only through the alienation of property can the will

Expression’s Onto-Epistemological Dynamics 27 become truly free, as the self does not depend on the property any more. Therefore, the modifications of property set a limit, although in a different sense, on private property rights. To truly own a thing as property is to alienate it. As Hegel insists, it is the “prerogative and the principle of the organic” that the property of which we take possession must be destroyed or alienated in order to preserve the self.195 More importantly, Hegel indicates that private property also has “a bearing on the anticipated relation to others.”196 While taking possession separates property from others, alienation returns property to others. This Hegelian modification of property in relation to others to some extent endorses the Lockean implicit limitation of private property rights from the needs of others. According to Merges’ reading of Kant in his discussion of the “State, Rights, and Utilitarian IP Law,” Merges suggested that a Kantian understanding of property, in line with universal rational principles, both “produces IP protection” and at the same time “require[s] that the rights be time limited.”197 As for Kant, “the universal rational will implies that the needs of others are incorporated into rational thinking about all rights, including property rights.”198 Merges argued that “[Kantian] writing would lead us to conclude, instead, that intellectual property rights are fundamental, but that they also of necessity must account for the needs and rights of others, because they are the product of an idealized set of social conventions and that positive legislation will often reflect this other-regarding face of property.”199 Among Merges’ four midlevel principles justifying intellectual property, the “proportionality principle” in particular reflects the philosophy of the balance of rights and obligations very well indeed. The proportionality principle, according to Merges: … is about basic fairness: the scope of a property right ought to be commensurate with the magnitude of the contribution underlying the right. Proportionality shows up in all sorts of IP rules, from infringement and remedies issues in copyright, to the requirements of patentability, to various trademark doctrines. It shows itself most clearly when a creator claims a right whose value is grossly disproportionate to the actual contribution at issue. In this situation, IP law finds a way to prevent the awarding of a disproportionate right.200 In fact, the balance of rights and obligations cannot only be justified from a classic copyright perspective, as Merges argued above, but can also be explained from a critical and postmodernist perspective. In an appreciation of the quest for a privacy right precedent in copyright law, Rose argued that, “copyright cases from the earliest days had mingled matters of privacy with matters of property,” and the institution of copyright thus “stands squarely on the boundary between private and public.”201 For Rose, this perspective “helps to explain its notorious duplicity [of copyright]: copyright is sometimes treated as a form of private property and sometimes as an instrument of public policy created for the encouragement of learning.”202 According to Rose, from copyright’s broadest division between “protected and unprotected works,” to the dichotomy between “expression and idea,” to the narrowest division between protected expression and “fair use,” all suggest copyright as a mediator between private and public in a “uncanny regularity at every level of its operation.”203 Central in this critical critique is the

28 The Origin of Copyright necessity of a balance between private and public at “every level” of copyright institution. TRIPS in fact confirms this reading of the limitations of private rights. First, TRIPS’ philosophy is to achieve a balance between rights and obligations in intellectual property protection. According to TRIPS, intellectual property protection should contribute to the promotion and dissemination of technological innovation, “to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”204 To balance rights and obligations, TRIPS allows members to adopt measures “necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to their socio-economic and technological development” and measures to prevent rightholder’s abuse or anti-competition practices, as long as these measures are TRIPS consistent.205 Furthermore, TRIPS provides exceptions to the exclusive rights conferred by a copyright, trademark, industrial design or patent, respectively. As a WTO Panel pointed out, Article 9(2) of the Berne Convention served as the model for a patent exception clause in Article 30, and “three other exceptions clauses in the TRIPS Agreement—Articles 13, 17 and 26.2, providing respectively for similar exceptions from obligations on copyright, trademarks and industrial designs.”206 Under the Berne Convention, the author’s exclusive right is subject to certain exceptions “in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”207 Therefore, although recognizing intellectual property as private rights, TRIPS’ philosophy balancing rights and obligations and emphasis of intellectual property protection for public interests and legitimate interests of third parties confirms the intrinsic limitation of property rights in both Lockean and Hegelian property theories. From classical Lockean or Hegelian limitations on private property right, to Kantian fairness as interpreted by Merges in the proportionality principle, to Rose’s postmodernist mediation between private and public, to TRIPS’ philosophy of the balance of rights and obligations, copyright has hardly ever been absolute. Indeed, copyright has never been completely exclusive from day one of the modern copyright regime, as the Statute of Anne stated clearly that this exclusive right is qualified by consideration of public learning. The Statute of Anne transformed copyright from a perpetual monopoly interest under guild regulation to a limited proprietary interest of statutory right.208 Historically, trade-oriented and publisher-centered copyright protection had thus been changed to a competitionbalanced and author-minded copyright regime, as publishers’ industrial interests in trade have to be balanced with access rights for the benefit of the public. As Patterson and Lindberg argued, the Statute of Anne “took seriously its stated purpose—the encouragement of learning—a goal that required making books available to the public.”209 Copyright historically as a private right retained by a publisher was then made into a right related to an author’s intellectual creation and readers’ access for public interest in the course of trade.

Expression’s Onto-Epistemological Dynamics 29 The balance of rights and obligations is therefore more than just a simple convenience only; rather, it is imperative. Private literature expression, be it Lockean “fruits of labor” or Hegelian externalization of the “free will”, either as Classic or Romantic authorship, certainly creates a certain individual proprietary interest to be secured against market competition in trade or to develop a certain degree of personality and singularity against state power. At this very moment of creation, the author is certainly separated from publisher and user, and the “known” even carries with it some public knowledge, which will be temporarily removed from the public domain. The ontological separation developed at the very moment accompanying the establishment of copyright. This onto-epistemological separation is, however, limited by Lockean “common law of nature” or Hegelian “prerogative and the principle of the organic” in anticipation of others. The balance of rights and obligations, therefore, bears fundamental significance in copyright onto-epistemology. Ground copyright from practical Lockean/Hegelian limitation to TRIPS’ categorical balance of rights and obligations, is indeed an onto-epistemological elevation of the regime to a higher moral ground, giving copyright a sense of humanity. It is worth noting that the sanctity of private property for singularity’s defense of individual autonomy has an intertwined relationship with the Enlightenment’s promotion of individualism, the rise of capitalism, and advance of science and technology, at a time when Newtonian physics was born. Private property’s ontological separation reflects the three assumptions of Newtonian physics’ “strict determinism”: a belief in representationalism, the metaphysics of individualism, and the intrinsic separability of knower and known.210 This determinism’s classical metaphysical assumptions have been seriously challenged by the ontological nature of the indeterminacy developed by Bohr onwards, which suggests, as individually determinate entities do not exist, that “measurements do not entail an interaction between separate entities; rather, determinate entities emerge from their intraaction.”211 The Newtonian notion of the transparency of observations and belief in representationalism and the intrinsic separability of knower and known were indeed flawed according to Bohr’s careful analysis of the process of measurement.212 Phenomena are indeed “specific intra-actions” instead of objects-inthemselves or objects in the Kantian or phenomenological sense, as “the basis of this ontology is a fundamental inseparability, it cuts across any Kantian noumenaphenomena distinction: there are no determinately bounded or propertied entities existing ‘behind’ or as the causes of phenomena.”213 In all technoscientific practices, as Barad argued, “the knower does not stand in a relation of absolute externality to the natural world,” and the “condition of possibility for objectivity” is not absolute exteriority but “exteriority within phenomena,” as “we are a part of that nature we seek to understand.”214 Either Lockean or Hegelian limitation should therefore be understood as anticipating acceptance of others, an ontoepistemological win-win rather than zero-sum relationship between the private and others. Both Lockean and Hegelian limitation on private property, if duly recognized, would certainly cure the onto-epistemological deficit reflecting in copyright’s isolation of the author when individualizing knowledge.

30 The Origin of Copyright Similarly in the way that “the world surely does not abide by the ontology of Newtonian physics,”215 the historical development and entanglement of a tripartite relationship between authorship, entrepreneurship, and readership surely calls for a brand-new copyright onto-epistemology to examine proprietary individual expression of “knowing in being.” The historical evolution process of how intellectual property has come to be protected as private rights is a gradual development process through which independently granted privileges became legal rights. The evolution from privileges to rights took place in a special social-historical context and enshrined an individualistic ideology. The continual process of reference of trademarks, copyrights, and patent rights to the “aggregated term of rights” is a process of relocation of intellectual property rights “in the language of private property [that] has obscured their origins in public privilege.”216 During this process, the balance between private rights and public interests has always been a key issue, although this might not have been very well maintained. The recognition of the TRIPS philosophy of the balance of rights and obligations, or generally the three-step test, or the universal recognition of the needs of fair dealing in the common law and fair use in civil law system, indicate to a certain extent a modern ontological implication. One way or the other, they recognize and emphasize the inseparability of the author-reader dynamics, the author’s expression of the knowing intrinsically linked to author’s being which cannot be separated from that of the readers and publishers. Moreover, the intra-play between the author’s expression as author’s knowing with reader’s fair dealing as reader’s being is a discursive practice, which has no continuity, is non-linear, and is mutually intra-active ontologically.217 This in turn justified the balance of rights and obligation doctrine, the three-step test, and the fair dealing doctrine in common law or fair use doctrine in civil law tradition. Building on Bohr’s challenge to the metaphysics of individualism and traditional approaches to ethics, Barad proposed a reconstruction of the notions of causality and agency. The reworking of causality, according to Barad, depends “not merely on the nonlinearity of relations but on their intra-active nature,” and “space, time, and matter are iteratively produced and performed.”218 Furthermore, “the relationship between continuity and discontinuity is not one of radical exteriority but rather of agential separability, each being threaded through with the other,” “‘[o]therness’ is an entangled relation of difference,” and “[q]uestions of space, time, and matter are intimately connected, indeed entangled, with questions of justice.”219 Through the reconfiguration of entangled relations, consequentiality, responsibility, and accountability, Barad suggested: There are no singular causes. And there are no individual agents of change. Responsibility is not ours alone. And yet our responsibility is greater than it would be if it were ours alone. Responsibility entails an ongoing responsiveness to the entanglements of self and other, here and there, now and then. … Intra-active practices of engagement not only make the world intelligible in specific ways but also foreclose other patterns of mattering. We are accountable for and to not only specific patterns of marks on bodies—that is, the differential patterns of mattering of the world of which we are a part—but also

Expression’s Onto-Epistemological Dynamics 31 the exclusions that we participate in enacting. Therefore accountability and responsibility must be thought in terms of what matters and what is excluded from mattering.220

1.4 Conclusion: Knowing in Being This book offers a jurisprudential critique of the copyright onto-epistemology of its tripartite stakeholders, driving force and evolution mechanism as to the protection of proprietary individual expression, and its implications for copyright’s future reform. As the book’s historical account at the very beginning indicates, copyright’s protection of individual proprietary expression shows a mutually implicated ontological dynamics between tripartite stakeholders among authorship, entrepreneurship, and readership through copyright evolution ever since the birth of the modern copyright in the Statute of Anne era. The evolution from copyright going modern upon the birth of the Statute of Anne, to going global between the Berne Convention and the TRIPS, and going digital via WIPO Internet Treaties reveals that the “expression” that copyright “protects” is enacted in entanglement with “the way” we “know, commercialize, an distribute” the “proprietary individual expression.” Central in the process of copyright evolution is an “onto-epistemological offset” that copyright’s knowing—originality’s delineation of creation—and being—protecting creation with balance of interests in mind through trade are not isolable and are mutually implicated. The book’s examination of the copyright onto-epistemology on how copyright created and understood proposes a theoretical framework of copyright integrity of knowing in being to look at copyright development’s tripartite stakeholders, driving force, and evolution mechanism. The book’s critical discussion is structured around the nested trilogy of copyright onto-epistemology of proprietary individual expression of knowing in being. While Chapter 2 examines the copyright ontological trilogy’s authorship-readership dynamics in tension between copyright and free speech, Chapter 3 examines copyright ontological trilogy’s authorship dynamics between copyright and future creation in legitimizing UGC exceptions. Chapter 4’s examination of copyright ontological trilogy’s entrepreneurship-readership dynamics in contract override issue completes the copyright ontological mini-trilogy critiques of the tripartite authorship-readership-entrepreneurship dynamics among copyright stakeholders. Together with the tripartite stakeholder ontological critiques, the following examination of technology and trade’s epistemological implications in Chapter 5 and Chapter 6 complete the grand-trilogy of copyright onto-epistemology’s tripartite stakeholder, driving force, and evolution mechanism. Chapter 5 examines technology advances as the copyright onto-epistemological force and implications for copyright reform in the digital age, and Chapter 6 looks at trade proliferation in the copyright onto-epistemological mechanism during the intra-play between trade fragmentation and copyright reform in the digital age. To complete the copyright onto-epistemological quest, the book concludes in Chapter 7 with a theoretical framework of copyright integrity of knowing in being, allowing us to look at copyright development’s tripartite stakeholders, driving force, and evolution mechanism. The copyright onto-epistemology framework

32 The Origin of Copyright suggests that the proprietary individual expression that copyright protects forms an integral part of our knowing in being—indeed an integral part of knowing and being, evolving among authorship-readership-entrepreneurship tripartite dynamics, which is driven by the advance of technology through the trading framework.

Notes 1 I acknowledge that the use of the term “onto-epistemology” is inspired by Karen Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (Durham and London: Duke University Press, 2007), where Professor Barad brilliantly used “ethico-onto-epistemology” to elaborate knowing in being and the inseparability of ontology, epistemology, and ethics. Of course, copyright expressions as practices of knowing in being as analyzed throughout the book, the current chapter and the closing chapter in particular, might appear more than just knowing in being, could even be both knowing and being indeed, forming an integral whole. 2 Bruce W. Bugbee, Genesis of American Patent and Copyright Law (Washington DC: Public Affairs Press, 1967), 13. 3 Bugbee, Genesis of American Patent and Copyright Law, 13. 4 Susan Sell and Christopher May, “Moments in Law: Contestation and Settlement in the History of Intellectual Property,” 8(3) Review of International Political Economy (2001), 475, 477. 5 WIPO, Introduction to Intellectual Property Theory and Practice (London: Kluwer Law International, 1997), 17. The law of copyright protection in the US was closely based on the original provisions in the Statute of Anne until the US enacted the current Copyright Act in 1976. See WIPO, Introduction to Intellectual Property Theory and Practice, 25. 6 Bugbee, Genesis of American Patent and Copyright Law, 12. 7 WIPO, Introduction to Intellectual Property Theory and Practice, 18. 8 Barad, Meeting the Universe Halfway, 97. According to Barad, Representationalism and Newtonian physics have roots in the seventeenth century. The assumption that language is a transparent medium that transmits a homologous picture of reality to the knowing mind finds its parallel in a scientific theory that takes observation to be the benign facilitator of discovery, a transparent lens passively gazing at the world. Just as words provide descriptions or representations of a pre-existing reality, observations reveal pre-existing properties of an observation-independent reality. In the twentieth century, both the representational or mimetic status of language and the inconsequentiality of the observational process have been called into question. Niels Bohr argued with brilliance, passion, and persistence that quantum physics not only revolutionized physics but shook the very foundation of Western epistemology. Indeed, Bohr’s philosophy-physics (the two were inseparable for him) poses a radical challenge not only to Newtonian physics but also to Cartesian epistemology and its representationalist triadic structure of words, knowers, and things. 9 See discussion infra 1.3.3 for more details. 10 Lyman R. Patterson, “The Statute of Anne: Copyright Misconstrued,” 3.2 Harvard Journal on Legislation (1966), 223, 227. 11 Patterson, “The Statute of Anne: Copyright Misconstrued,” 227–228. See also, Lyman R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968), 143–144. 12 Patterson, “The Statute of Anne: Copyright Misconstrued,” 228–229. 13 Patterson, “The Statute of Anne: Copyright Misconstrued,” 234–235. 14 Sections II and XI, Statute of Anne 1710. 15 Patterson, Copyright in Historical Perspective, 151–179.

Expression’s Onto-Epistemological Dynamics 33 16 The law of copyright protection in the US was closely based on the original provisions in the Statute of Anne until the US enacted the current Copyright Act in 1976. See WIPO, Introduction to Intellectual Property Theory and Practice, 25. 17 Brian Lee Pelanda, “Declarations of Cultural Independence: the Nationalistic Imperative Behind the Passage of Early American Copyright Laws, 1783–1787,” 58 Journal of the Copyright Society of the U.S.A. (2011), 447. See also, Patterson, Copyright in Historical Perspective, 183–184. 18 Patterson, Copyright in Historical Perspective, 183–184. 19 Patterson, Copyright in Historical Perspective, 187–188. 20 Patterson, Copyright in Historical Perspective, 188–189. 21 Patterson, Copyright in Historical Perspective, 200. 22 Patterson, “The Statute of Anne: Copyright Misconstrued,” 223. 23 Pelanda, “Declarations of Cultural Independence,” 454. 24 Barbara Ringer, “The Role of the United States in International Copyright—Past, Present, and Future,” 56.6 Georgetown Law Journal (1968), 1050, 1054–1055. See also, Jane Ginsburg and Robert Kernochan, “One Hundred and Two Years Later: the US joins the Berne Convention,” 13.1 Columbia-VLA Journal of Law & Arts (1988), 1–3. 25 The Berne Convention Implementation Act of 1988, Pub. L. No. 100–568, 102 Stat. 2853 (1988). See also, Ginsburg and Kernochan, “One Hundred and Two Years Later: the US joins the Berne Convention,” 1. 26 UNCTAD and ICTSD, Resource Book on TRIPS and Development (New York: Cambridge University Press, 2005), 3. 27 Peter K. Yu, “The Objectives and Principles of the TRIPS Agreement,” 46 Houston Law Review (2009), 982. 28 UNCTAD and ICTSD, Resource Book on TRIPS and Development, 3–4. See also, Yu, “The Objectives and Principles of the TRIPS Agreement,” 983–984; Wenwei Guan, Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014), 5–7. 29 Art. 9(1), TRIPS Agreement. 30 Arts. 10, 11, 12, 14, 9(2) and 13, TRIPS Agreement. 31 Arts. 41–64, Parts III-V, TRIPS Agreement. 32 Footnote 9, Agreed Statement concerning Art 10, WIPO Copyright Treaty 1996 (WCT). 33 The 1996 WIPO Copyright Treaty (WCT) and the 1996 WIPO Performances and Phonograms Treaty (WPPT) together are called the “Internet Treaties.” 34 David Nimmer, “A Riff on Fair Use in the Digital Millennium Copyright Act,” 148(3) University of Pennsylvania Law Review (2000), 673, 674. 35 Pub. L. No. 105–304, 112 Stat. 2860. 36 David Nimmer, “A Riff on Fair Use in the Digital Millennium Copyright Act,” 680–681. 37 Bugbee, Genesis of American Patent and Copyright Law, 14. 38 Bugbee, Genesis of American Patent and Copyright Law, 14. 39 Bugbee, Genesis of American Patent and Copyright Law, 14–16. 40 Bugbee, Genesis of American Patent and Copyright Law, 16–17. 41 Bugbee, Genesis of American Patent and Copyright Law, 12, 17. 42 Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967), 1–3. 43 Kaplan, An Unhurried View of Copyright, 3. 44 Patterson, Copyright in Historical Perspective, 222. 45 Patterson, Copyright in Historical Perspective, 223. 46 Patterson, Copyright in Historical Perspective, 14. 47 Patterson, Copyright in Historical Perspective, 14. 48 Patterson, Copyright in Historical Perspective, 150.

34 The Origin of Copyright 49 Lyman R. Patterson, “Free Speech, Copyright, and Fair Use,” 40.1 Vanderbilt Law Review (1987), 6–7. 50 Peter K. Yu, “The Copyright Divide,” 25.1 Cardozo Law Review (2003), 331–445. 51 Yu, “The Copyright Divide,” 444. 52 Yu, “The Copyright Divide,” 445. 53 As to the RIAA story, see Yu, “The Copyright Divide,” 374ff., 397–401 in particularly on post-DMCA development. 54 As to the Chinese story, see Yu, “The Copyright Divide,” 354ff., 358–360 in particularly on US-China talks using intellectual property protection tactic for trade facilitation purpose pushing China for more market access concession. 55 As to the eighteenth- and nineteenth-century America book piracy story, see Yu, “The Copyright Divide,” 336ff., 378–345 in particularly. 56 Lyman R. Patterson and Craig Joyce, “Monopolizing the Law: The Scope of Copyright Protection for Law reports and Statutory Compilations,” 36.4 UCLA Law Review (1989), 783–792. According to Patterson and Joyce (791–792), The three doctrinal imperatives of copyright require the provision of incentives for authors, in order that new works may be created and, ultimately, the public domain enhanced. The complexity of copyright derives, at least in part, from the fact that, to accomplish these ends, this body of law must accommodate the often competing interests of three groups: authors, publishers, and users (that is, the public). Authors are mentioned specifically in the copyright clause, and the interests of the public provide the clause’s raison d’etre. But the public does not benefit from the efforts of authors unless the products of their labors are disseminated, which is the province of publishers. Likewise, authors themselves rarely can profit from their labors unless the results thereof are subject to exploitation through media which, in the modem age, often are prohibitively expensive, and which continue to be controlled by publishers. [footnote omitted] 57 Patterson and Joyce, “Monopolizing the Law,” 792–798. 58 Patterson and Joyce, “Monopolizing the Law,” 798. 59 Patterson and Joyce, “Monopolizing the Law,” 798. Emphasis original. 60 Together with the “the danger of monopoly from the publisher rather than the author,” the other two include “the differing interests of the publisher and the author, and the rights of the individual user.” See Patterson, Copyright in Historical Perspective, 228. 61 Jane C. Ginsburg, “Creation and Commercial Value: Copyright Protection of Works of Information,” 90.7 Columbia Law Review (1990), 1885. 62 Ginsburg, “Creation and Commercial Value,” 1885–1886. 63 Ginsburg, “Creation and Commercial Value,” 1878. 64 Ginsburg, “Creation and Commercial Value,” 1886. 65 Ginsburg, “Creation and Commercial Value,” 1886. 66 Patterson, Copyright in Historical Perspective, 223. 67 Patterson, Copyright in Historical Perspective, 218. 68 Patterson, Copyright in Historical Perspective, 219. 69 Patterson, Copyright in Historical Perspective, 224–225. 70 Patterson, Copyright in Historical Perspective, 228. 71 Michel Foucault, “What is an Author?” in Paul Rabinow ed., The Foucault Reader (Pantheon Books, 1984), 101. 72 Peter Drahos, A Philosophy of Intellectual Property (Brookfield, VT: Dartmouth Publishing Company, 1996), 213. Emphasis original. 73 Drahos, A Philosophy of Intellectual Property, 202–203. 74 Drahos, A Philosophy of Intellectual Property, 118–119. 75 Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Massachusetts: Harvard University Press, 1993), 142.

Expression’s Onto-Epistemological Dynamics 35 76 Bugbee, Genesis of American Patent and Copyright Law, 12. According to Bugbee, Plato’s Republic put craftsman of useful arts to the lowest stratum, and described craftsman, who should be legally separated from citizen, with contempt. 77 Martha Woodmansee, The Author, Art, and the Market: Reading the History of Aesthetics (New York: Columbia University Press, 1994), 36. The book is a seminal piece offers a brilliant critique of the birth of the author beyond a cultural historian account of the emergence of aesthetics. 78 Woodmansee, The Author, Art, and the Market, 36–37. 79 Woodmansee, The Author, Art, and the Market, 37. 80 Woodmansee, The Author, Art, and the Market, 38. Emphasis original. 81 Woodmansee, The Author, Art, and the Market, 39. 82 Woodmansee, The Author, Art, and the Market, 54. 83 Woodmansee, The Author, Art, and the Market, 55. 84 Donaldson v Becket, [1774] Hansard, 1st ser., 17 (1774): 1000. 85 Donaldson v Becket, [1774] Hansard, 1st ser., 17 (1774): 999–1000. 86 Patterson, Copyright in Historical Perspective, 195, where Patterson also suggested, When Madison said in No. 43 of the Federalist Papers, “The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors,” he was merely stating that the economic right of authors embodied in copyright was also appropriate for inventors. 87 Robert P. Merges, Justifying Intellectual Property (Cambridge, Massachusetts: Harvard University press, 2011), 294. 88 Merges, Justifying Intellectual Property, 294. 89 See discussion supra 1.1.2 for more details. 90 W. Cornish, D. Llewelyn and T. Aplin, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (London: Sweet & Maxwell, 8th ed., 2013), 427–428. 91 Ibid., 428. 92 Art. 7, Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases. 93 Art. 9.2, TRIPS Agreement. 94 See, § 102(b), US Copyright Act of 1976; Article 2, WCT 1996. 95 Baker v Selden, 101 US 99 (1879); Kenrick v Lawrence [1890] LR 25, QBD 99. 96 Donaldson v Becket, [1774 Hansard, 1st ser., 17 (1774): 962. 97 Catherine Seville, Literary Copyright Reform in Early Victorian England: the Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999), 12. 98 Golan v Holder, 132 S Ct 873, 889–890 (2012). 99 Jane C. Ginsburg, “Copyright,” in Rochelle Dreyfuss and Justine Pila eds, The Oxford Handbook of Intellectual Property Law (Oxford: Oxford University Press, 2018), 503. 100 Feist Publications, Inc. v Rural Tel. Service Co., 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358, 1991 U.S. 101 Walter v Lane [1900] AC 539. The later case University of London reflects the doctrine in which the Court suggested “what is not copied is original.” See University of London Press v University Tutorial Press Ltd [1916] 2 Ch 601. Given that the “sweat of the brow” doctrine has been abandoned in most other jurisdictions, the UK and Hong Kong appear to be somewhat behind in this issue. As a common law jurisdiction, Hong Kong’s court straightforwardly pointed out that “[t]he standard [of the originality test] required is a low one” (Tai Shing Diary Ltd v Maersk Hong Kong Ltd [2007] 2 HKC 23): The author may draw on existing material, so long as more than negligible or trivial effort or relevant skill and judgment have been expended in the creation of the work. The standard required is a low one, but the effort must not be as trivial as to be characterized as a purely mechanical exercise. The skill and effort protected is not only that expended on its manner of presentation, but of collecting, selecting, arranging and presenting the available information in an intelligible manner.

36 The Origin of Copyright 102 Mary WS Wong, “‘Transformative’ User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?” 11.4 Vanderbilt Journal of Entertainment & Technology Law (2009), 1075, 1091. 103 Carys J Craig, “The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest,” 2.2 University of Ottawa Law & Technology Journal (2005), 427, 444–445. 104 Kenneth B. Umbreit, “A Consideration of Copyright,” 87.8 University of Pennsylvania Law Review (1939), 952. 105 Umbreit, “A Consideration of Copyright,” 952. 106 Umbreit, “A Consideration of Copyright,” 953. 107 Umbreit, “A Consideration of Copyright,” 947–948. 108 Kaplan, An Unhurried View of Copyright, 23–25. 109 Kaplan, An Unhurried View of Copyright, 22. Different from Classicism’s low tolerance to imitation, Romanticism’s emphasis on individuality fits better with market, commerce and trade, as well as investment protection, which is a perfect evidence of the intertwining relationship between copyright and trade. 110 Kaplan, An Unhurried View of Copyright, 36–37. 111 Kaplan, An Unhurried View of Copyright, 34–35. 112 Jane C. Ginsburg, “Creation and Commercial Value: Copyright Protection of Works of Information,” 90.7 Columbia Law Review (1990), 1866. 113 Lyman R. Patterson, “Copyright Overextended: A Preliminary Inquiry into the Need for A Federal Statute of Unfair Competition,” 17.2 University of Dayton Law Review (1992), 386. 114 Patterson, “Copyright Overextended,” 386–387. 115 Patterson, “Copyright Overextended,” 386. Then the rise of the originality bar in Feist case, reflect a preference of Classicism over Romanticism, against the “pedestrian nonimaginative works” (24–5, Kaplan). The originality bar, in pushing creativity, is excluding “pedestrian” works and “low quality” UGC works. 116 Kaplan acknowledged this during commenting on Judge Hand’s treatment of the unconscious plagiarism in Fred Fisher Inc v Dillingham case. See Kaplan, An Unhurried View of Copyright, 42. 117 Ibid., 43. 118 Ibid., 44. 119 Certainly, technology, “Law and Development” discourse, Newtonian classical physics’ strict determinism and linearity, and the cult of knowledge are interconnected, which to a certain extent reflects modern copyright’s onto-epistemology. 120 Donaldson v Becket, [1774] Hansard, 1st ser., 17 (1774): 955, note 1. 121 Paul Goldstein, Copyright’s Highway: from the Printing Press to the Cloud (Stanford, CA: Stanford University Press, 2019, 2nd ed.), 17. 122 Goldstein, Copyright’s Highway, 17–18. 123 Goldstein, Copyright’s Highway, 18. 124 Goldstein, Copyright’s Highway, 87–88. 125 Goldstein, Copyright’s Highway, 88. 126 Goldstein, Copyright’s Highway, 88. 127 Debora J. Halbert, The State of Copyright: The Complex Relationships of Cultural Creation in A Globalized World (London: Routledge, 2014), 5. 128 Peter Drahos, “IP World—Made by TNC Inc.,” in Gaelle Krikorian and amy Kapczynski, eds, Access to Knowledge in the Age of Intellectual Property (New York: Zone Books, 2010), 211. 129 Halbert, The State of Copyright, 10. 130 Halbert, The State of Copyright, 10. Halbert argued that (footnote 51, p. 22): The state’s historical role has been to develop a legal regime that facilitates the economic use of expression at the behest of specific interests. For example, the history of copyright law emerged from a struggle to define authorship and ownership over

Expression’s Onto-Epistemological Dynamics 37

131 132

133 134

135 136

137

138 139 140 141

142 143

144 145

literary works in eighteenth-century England in the midst of a highly politicized atmosphere that included censorship, international trade in literary texts, and protectionist strategies advocated by already existing monopoly holders. See discussion supra 1.1.1. As a concept of social programming, development is often traced back to Truman’s reference to a “fair deal” in his 1949 State of the Union address, in which he proposed “a program of development based on the concepts of democratic fair dealing” to benefit the lives of those people in the “underdeveloped areas” of the world. See, Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton, NJ: Princeton University Press, 1995), 3; Ruth E. Gordon and Jon H. Sylvester, “Deconstructing Development,” 22 Wisconsin International Law Journal (2004), 9–10. Vincent Tucker, “The Myth of Development: A critique of a Eurocentric Discourse,” in Ronaldo Munck and Denis O’Hearn eds., Critical Development Theory: Contributions to a New Paradigm (1999), 4–6. Tucker, “The Myth of Development,” 4. See also M. Edelman and A. Haugerud, “Introduction: The Anthropology of Development and Globalization,” in M. Edelman & A. Haugerud eds., The Anthropology of Development and Globalization: from Classical Political Economy to Contemporary Neoliberalism (Oxford: Blackwell Publishing, 2005), 5. Edelman and Haugerud, 50. Tucker, “The Myth of Development,” 4. See also, M. Sarup and T. Raja, Identity, Culture and the Postmodern World (University of Georgia Press, 1996), 94. Sarup and Raja suggested: Modernity is usually perceived as positivistic, technocratic and rationalistic. It has been identified with the belief in linear progress, absolute truths, the rational planning of ideal social orders, and the standardization of knowledge and its production. The modernity project came into focus during the eighteenth century, and was an extraordinary intellectual effort on the part of Enlightenment thinkers to develop objective science, universal morality and autonomous art. Enlightenment thinkers embraced the idea of progress; they believed in justice and in the possibility of happiness of human beings. J. Ferguson, “Anthropology and its Evil Twin: “Development” in the Constitution of a Discipline,” in F. Cooper and R. Packard eds, International Development and the Social Sciences: Essays on the History and Politics of Knowledge ((Berkeley and Los Angeles, CA: University of California Press, 1997), 154. Guan, Intellectual Property Theory and Practice, 116–122. D. M. Trubek and M. Galanter, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development,” Wisconsin Law Review (1974), 1094–1095. Ibid. Escobar, Encountering Development, 35. According to Escobar (36), [s]cience and technology had been the markers of civilization par excellence since the nineteenth century, when machines became the index of civilization, ‘the measure of men.’ … Technology, it was believed, would not only amplify material progress, it would also confer upon it a sense of direction and significance. … technology was theorized as a sort of moral force that would operate by creating an ethics of innovation, yield, and result. Escobar, Encountering Development, 221. The term “alienation” used here in a philosophical sense refers to the isolation of the self from others. It is different from the term we used below (discussion infra 1.3.1) when we discussed Locke and Hegel’s property theories, in which “alienation” refers to a “conveyance” of property. Anthony Carty, “From the Right to Economic Self-Determination to the Right to Development: A Crisis in Legal Theory,” Third World Legal Studies (1984), 80–81. Tucker, “The Myth of Development,” 4–6.

38 The Origin of Copyright 146 Max Horkheimer and Theodor W. Adorno, Dialectic of Enlightenment: Philosophical Fragments, trans. Edmund Jephcott (Redwood City, CA: Stanford University Press, 2002), 2. 147 Art. I, US Constitution; Art. 7, TRIPS Agreement. 148 Horkheimer and Adorno, Dialectic of Enlightenment, 1 and 5. 149 Justin Hughes, “The Philosophy of Intellectual Property,” 77 Georgetown Law Journal (1988–1989), 287–366. 150 Drahos, A Philosophy of Intellectual Property, 200, 220. 151 Susan Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003), 5. 152 Graham Dutfield, Intellectual Property Rights and the Life Science Industries: A Twentieth Century History (Farnham, Surrey:Ashgate Publishing Ltd. 2003), 29. 153 United States v. Jean Martignon, 346 F Supp. 2d 413, 416 (District Court for the Southern District of New York 2004). At footnote 2. In response to the debate about the purpose of the Copyright Clause (US Constitution, article I, § 8, cl. 8), the court acknowledged that there is an inherent tension between protecting an author’s right to his creative work and the public’s right of access to that work. See also, John D. Shuff and Geoffrey T. Holtz, “Copyright Tensions in Digital Age,” 34 Akron Law Review (2001), 555, 556. 154 Keith E Maskus, Intellectual Property Rights in the Global Economy (Washington DC: Institute for International Economics, 2000), 29. See also Jeffrey L. Harrison and Jules Theeuwes, Law and Economics (New York; W. W. Norton & Company, 2008), 143. It is suggested that there will always be an inherent tension in protecting intellectual property between “the right to compensation to stimulate creative people and the need of society to have wide access to creations to build and expand on them.” 155 4th recital, Preamble, TRIPS Agreement. 156 US Constitution. Fifth Amendment states that, “[n]o person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 157 James v. Campbell, 104 U.S. 356, 357–8 (1882), reiterated in Hollister v. Benedict & Burnham Mfg. Co, 113 U.S. 59, 67 (1885). 158 The doctrine, established at Walter v Lane [1900] AC 539, was later followed by University of London Press v University Tutorial Press Ltd [1916] 2 Ch 601, which states “what is not copied is original.” 159 At para. 15, CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13. 160 “Positive community,” according to Drahos, “is defined in terms of a common which belongs to all.” Drahos, A Philosophy of Intellectual Property, 46. 161 John Locke, The Second Treatise of Government (New Jersey: Prentice-Hall, 1997), §§ 25, 27. The references are to the numbered sections of Locke’s text. 162 Locke, The Second Treatise of Government, §§. 27. 163 According to Drahos, “negative community is defined in terms of a commons belonging to no one, parts of which may be appropriated.” Drahos, A Philosophy of Intellectual Property, 46. 164 G. W. G. Hegel, The Philosophy of Right, T. M. Knox trans. (Oxford: Oxford University Press, 1967), § 4. The references are to the numbered paragraphs of Hegel’s text. 165 Hegel, The Philosophy of Right, §§ 41, 45. In the addition of § 41, Hegel argued that “The rationale of property is to be found not in the satisfaction of needs but in the supersession of the pure subjectivity of personality. In his property a person exists for the first time as reason.” 166 Hegel, The Philosophy of Right, § 45. Hegel also argued (addition to § 50) that “the first person to take possession of a thing should also be its owner is an inference from what has been said. The first is the rightful owner, however, not because he is the first

Expression’s Onto-Epistemological Dynamics 39

167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187

188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204

but because he is a free will, for it is only by another’s succeeding him that he becomes the first.” R. Pipes, Property and Freedom (London: Alfred A. Knopf. 1999), 36. Hegel, The Philosophy of Right, §§ 51, 41. As for singularity (the oneness) as opposed to totality, we mean the property of an individual as being independent and enjoying the right of being different. For totality (the wholeness) as opposed to singularity, we mean the modification of a collective that clears out every difference or oneness of individuals through internalized totalizing power to set up an oppressive whole. Henry Maine, Ancient Law (London: J. M. Dent & Sons Ltd., 1917), 101. Jeremy Bentham, Theory of Legislation (London: Adamant Media Co., 2005), 113. F. A. Hayek, The Fatal Conceit: The Errors of Socialism (London: Routledge. 1988), 30–31, 34. Pipes, Property and Freedom, 36. Guan, Intellectual Property Theory and Practice, 125–127. Kaplan, An Unhurried View of Copyright, 22. Kaplan, An Unhurried View of Copyright, 23–25. Goldstein, Copyright’s Highway, 111–112 Goldstein, Copyright’s Highway, 112. Goldstein, Copyright’s Highway, 112. Merges, Justifying Intellectual Property, 94. Goldstein, Copyright’s Highway, 112. Goldstein, Copyright’s Highway, 112–113. Rose, Authors and Owners, 142. Rose, Authors and Owners, 142. Jonathan Scott Enderle, “Common Knowledge: Epistemology and the beginnings of Copyright Law,” 131.2 PMLA (2016), 290–291. Enderle, “Common Knowledge,” 296, 299. According to a Lockean view of ideas, Enderle pointed out (299), “while a literary composition,” … lies dormant in the Mind, it is absolutely in the Power of the Proprietor. He alone is intitled to the Profits of communicating, or making it public. The first Step to which, is cloathing our conceptions in Words, the only Means to communicate abstracted Ideas. Ideas drawn from external objects, may be communicated by external signs; but Words only, demonstrate the genuine Operations of the Intellect. Enderle, “Common Knowledge,” 304–305. This indeed goes beyond the issues of originality and property, deep into the central issue of onto-epistemology. Bleistein v Donaldson Lithographing Co., 188 U.S. 239, 249–250 (1903). See also, Ginsburg’s discussion at conclusion of the paper, Ginsburg, “Creation and Commercial Value,” 1936–1938. Kaplan, An Unhurried View of Copyright, 34–35. Locke, The Second Treatise of Government, § 31. Locke, The Second Treatise of Government, § 37. Hegel, The Philosophy of Right, § 53. Hegel, The Philosophy of Right, addition of § 59. See also, Guan, Intellectual Property Theory and Practice, 29–32. Hegel, The Philosophy of Right, § 51. Merges, Justifying Intellectual Property, 95. Merges, Justifying Intellectual Property, 95. Merges, Justifying Intellectual Property, 96. Merges, Justifying Intellectual Property, 8. Rose, Authors and Owners, 140. Rose, Authors and Owners, 140. Rose, Authors and Owners, 140–141. Art. 7, TRIPS Agreement. Emphasis added.

40 The Origin of Copyright 205 Arts. 8(1) and 8(2), TRIPS Agreement. 206 Canada–Pharmaceutical Patents, WTO Panel Report (WT/DS114/R, 17 Mark 2000), para. 7.71, and footnote 420 to para. 7.71. 207 Art. 9(2), Berne Convention. 208 Patterson, Copyright in Historical Perspective, 3–19. 209 Lyman R. Patterson and S. W. Lindberg, The Nature of Copyright: A Law of User’s Rights (Athens, GA: University of Georgia Press, 1991), 126. According to Patterson and Lindberg (id.), Apart from the limited term for copyright that creates the public domain, three sections of that first English act suggest both a repudiation of censorship and an affirmative concern for the right of access to books: section 4 provided for price control of books, section 5 provided that copyrighted books were to be supplied to nine different libraries, and section 7 provided that the act was not to prevent the importation of, or apply to, books in foreign languages printed beyond the seas, which had previously required the licenser’s imprimatur as part of the scheme of censorship. 210 Barad, Meeting the Universe Halfway, 107. According to Barad, these three assumptions, “entail a belief in representationalism (the independently determinate existence of words and things), the metaphysics of individualism (that the world is composed of individual entities with individually determinate boundaries and properties), and the intrinsic separability of knower and known (that measurements reveal the pre-existing values of the properties of independently existing objects as separate from the measuring agencies).” 211 Barad, Meeting the Universe Halfway, 107. According to Barad (id.), the term “intraaction” is introduced in “recognition of their ontological inseparability, in contrast to the usual “interaction,” which relies on a metaphysics of individualism (in particular, the prior existence of separately determinate entities).” 212 Barad, Meeting the Universe Halfway, 195. 213 Barad, Meeting the Universe Halfway, 128. 214 Barad, Meeting the Universe Halfway, 184. 215 Barad, Meeting the Universe Halfway, 31. 216 Drahos, A Philosophy of Intellectual Property, 213. 217 The use of the term “intra-play” is inspired by Professor Karen Barad’s use of “intraaction.” The use of “intra-play” instead, is to emphasize the process or occurrence instead of the effect or result of “playing” against each other between objects or events, and to emphasize the mutual independence between the objects or events before, during and after “playing” against each other. In this case, for example, neither does the intra-play between author and reader hold any purpose of producing any effect, nor does author or reader lost their independence before, during, or after the intra-play against each other. To a certain extent, the term “intra-play” reflects more Bohrian instead of Newtonian perspective of the nature of being, a more ethical understanding of copyright onto-epistemology. 218 Barad, Meeting the Universe Halfway, 393. 219 Barad, Meeting the Universe Halfway, 236. 220 Barad, Meeting the Universe Halfway, 394.

Bibliography General Barad, Karen. Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (Durham, NC and London: Duke University Press, 2007). Bentham, Jeremy. Theory of Legislation ((London: Adamant Media Co., 2005, an Elibron Classics Replica of 1896 edition by Kegan Paul, Trench, Trübner & Co., Ltd., London).

Expression’s Onto-Epistemological Dynamics 41 Bugbee, Bruce W. Genesis of American Patent and Copyright Law (Washington, DC: Public Affairs Press, 1967). Carty, Anthony. “From the Right to Economic Self-Determination to the Right to Development: A Crisis in Legal Theory,” Third World Legal Studies (1984), 73–86. Cornish, W., D. Llewelyn, & T. Aplin. Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (London: Sweet & Maxwell, 8th ed., 2013). Craig, Carys J.“The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest,” 2(2) University of Ottawa Law & Technology Journal (2005), 425–446. Drahos, Peter. A Philosophy of Intellectual Property (Brookfield, VT: Dartmouth Publishing Company, 1996). Drahos, Peter. “‘IP World’—Made by TNC Inc.,” in Gaelle Krikorian and Amy Kapczynski eds, Access to Knowledge in the Age of Intellectual Property (New York, NY: Zone Books, 2010), 197–217. Dutfield, Graham. Intellectual Property Rights and the Life Science Industries: A Twentieth Century History (Farnham: Ashgate Publishing, 2003). Edelman, M and A. Haugerud, “Introduction: The Anthropology of Development and Globalization,” in M. Edelman and A. Haugerud eds., The Anthropology of Development and Globalization: from Classical Political Economy to Contemporary Neoliberalism (Oxford: Blackwell Publishing, 2005), 1–74. Enderle, Jonathan Scott. “Common Knowledge: Epistemology and the beginnings of Copyright Law,” 131(2) PMLA (2016), 289–306. Escobar, Arturo. Encountering Development: The Making and Unmaking of the Third World (Princeton, NJ: Princeton University Press, 1995). Ferguson, James. “Anthropology and its Evil Twin: ‘Development’ in the Constitution of a Discipline,” in F. Cooper and R. Packard eds.,International Development and the Social Sciences: Essays on the History and Politics of Knowledge (Berkeley, CA and Los Angeles, CA: University of California Press, 1997), 150–175. Foucault, Michel “What is an Author?” in Paul Rabinowed.,The Foucault Reader (New York, NY: Pantheon Books, 1984), 101–120. Ginsburg, Jane C.“Creation and Commercial Value: Copyright Protection of Works of Information,” 90(7) Columbia Law Review (1990), 1865–1938. Ginsburg, Jane C. “Copyright,” in Rochelle Dreyfuss and Justine Pilaeds, The Oxford Handbook of Intellectual Property Law (Oxford: Oxford University Press, 2018), 487–516. Ginsburg, Jane C. and Robert Kernochan, “One Hundred and Two Years Later: the US joins the Berne Convention,” 13(1) Columbia-VLA Journal of Law & Arts (1988), 1–38. Goldstein, Paul. Copyright’s Highway: from the Printing Press to the Cloud (Stanford, CA: Stanford University Press, 2019, 2nd ed.). Gordon, Ruth E. and Jon H. Sylvester, “Deconstructing Development,”22 Wisconsin International Law Journal (2004), 1–98. Guan, Wenwei. Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014). Halbert, Debora J. The State of Copyright: The Complex Relationships of Cultural Creation in A Globalized World (London: Routledge, 2014). Harrison, Jeffrey L. and Jules Theeuwes. Law and Economics (New York, NY: W. W. Norton & Company, 2008). Hayek, Friedrich August. The Fatal Conceit: The Errors of Socialism (London: Routledge, 1988).

42 The Origin of Copyright Hegel, G. W. G. The Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967). Horkheimer, Max and Theodor W.Adorno, Dialectic of Enlightenment: Philosophical Fragments, trans. Edmund Jephcott (Redwood City, CA: Stanford University Press, 2002). Hughes, Justin. “The Philosophy of Intellectual Property,” 77 Georgetown Law Journal (1988–89), 287–366. Kaplan, Benjamin. An Unhurried View of Copyright (New York, NY: Columbia University Press, 1967). Locke, John. The Second Treatise of Government (New Jersey, NJ: Prentice-Hall, 1997). Maine, Henry S. Ancient Law (London: J. M. Dent & Sons Ltd, 1917). Maskus, Keith E. Intellectual Property Rights in the Global Economy (Washington, DC: Institute for International Economics, 2000). May, Christopher and Susan K. Sell, Intellectual Property Rights: A Critical History (Boulder, CO: Lynne Rienner Publishers, 2006). Merges, Robert P. Justifying Intellectual Property (Cambridge, MA: Harvard University Press, 2011). Nimmer, David. “A Riff on Fair Use in the Digital Millennium Copyright Act,” 148(3) University of Pennsylvania Law Review (2000), 673–742. Patterson, Lyman R.“The Statute of Anne: Copyright Misconstrued,” 3(2), Harvard Journal on Legislation (1966), 223–256. Patterson, Lyman R. Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968). Patterson, Lyman R.“Free Speech, Copyright, and Fair Use,” 40(1)Vanderbilt Law Review (1987), 1–66. Patterson, Lyman R.“Copyright Overextended: A Preliminary Inquiry into the Need for A Federal Statute of Unfair Competition,” 17(2) University of Dayton Law Review (1992), 385–412. Patterson, Lyman R. and Craig Joyce. “Monopolizing the Law: the Scope of Copyright Protection for Law reports and Statutory Compilations,” 36(4) UCLA Law Review (1989), 719–814. Patterson, Lyman R. and Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (Athens, GA: University of Georgia Press, 1991). Pelanda, Brian Lee. “Declarations of Cultural Independence: The Nationalistic Imperative Behind the Passage of Early American Copyright Laws, 1783–1787,”58 Journal of the Copyright Society of the USA (2011), 431–454. Pipes, R. Property and Freedom (London: Alfred A. Knopf, 1999). Ringer, Barbara A.“The Role of the United States in International Copyright—Past, Present, and Future,” 56(6) Georgetown Law Journal (1968), 1050–1079. Rose, Mark. Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993). Sarup, M and T. Raja, Identity, Culture and the Postmodern World (Athens, GA: University of Georgia Press, 1996), 94. Sell, Susan & Christopher May, “Moments in Law: Contestation and Settlement in the History of Intellectual Property”, Review of International Political Economy, 8(3) (2001), 467–500. Sell, Susan. Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003). Seville, Catherine. Literary Copyright Reform in Early Victorian England: the Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999).

Expression’s Onto-Epistemological Dynamics 43 Shuff, John D. and Geoffrey T. Holtz, “Copyright Tensions in Digital Age,”34 Akron Law Review (2001), 555–570. Trubek, D. M. and M. Galanter, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development,” Wisconsin Law Review (1974), 1062–1103. Tucker, Vincent. “The Myth of Development: A critique of a Eurocentric Discourse,” in Ronaldo Munck and Denis O’Hearn, eds, Critical Development Theory: Contributions to a New Paradigm (London: Zed Books, 1999), 1–26. Umbreit, Kenneth B.“A Consideration of Copyright,” 87(8) University of Pennsylvania Law Review (1939), 932–953. UNCTAD and ICTSD. Resource Book on TRIPS and Development (New York, NY: Cambridge University Press, 2005). WIPO. Introduction to Intellectual Property Theory and Practice (London: Kluwer Law International, 1997). Wong, Mary W. S.“‘Transformative’ User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?” 11(4) Vanderbilt Journal of Entertainment & Technology Law (2009), 1075–1140. Woodmansee, Martha. The Author, Art, and the Market: Reading the History of Aesthetics (New York, NY: Columbia University Press, 1994). Yu, Peter K.“The Copyright Divide,” 25( 1) Cardozo Law Review (2003), 331–445. Yu, Peter K.“The Objectives and Principles of the TRIPS Agreement,”46 Houston Law Review (2009), 979–1046.

Cases Baker v. Selden, 101 US 99 (1879) Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) Canada – Pharmaceutical Patents, WTO Panel Report, WT/DS114/R (17 March 2000) CCH Canadian Ltd v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13 Donaldson v. Becket, [1774] Hansard, 1st ser., 17 (1774) Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991) Golan v. Holder, 565 U.S. 302, 132 S. Ct. 873 (2012) Hollister v.Benedict & Burnham Mfg. Co., 113 U.S. 59 (1885) James v. Campbell, 104 U.S. 356 (1882) Kenrick v. Lawrence, [1890] LR 25, QBD 99 Tai Shing Diary Ltd v. Maersk Hong Kong Ltd, [2007] 2 HKC 23 United States v. Jean Martignon, 346 F Supp. 2d 413 (2004) University of London Press v. University Tutorial Press Ltd, [1916] 2 Ch 601 Walter v. Lane, [1900] AC 539

2

Copyright Ontological Trilogy I Internet Freedom’s Authorship-Readership Ontological Dynamics1

As the first part of the copyright ontological trilogy, the chapter reveals something worth mentioning in Hong Kong’s failed attempt at copyright amendment for the digital age. Hong Kong’s 2011 Copyright Bill not only accommodates various individual rights, but also combines statutory law with a non-statutory Code of Practice to define Online Service Providers’ liability through its “one regime, two systems” framework. The Hong Kong model provides insight for other jurisdictions on balancing conflicting interests in adapting copyright protection to the digital era. This chapter’s case study has copyright ontological implications extending beyond Hong Kong and common law jurisdictions, in which the all-embracing exclusive right of communication creates ontological isolation between copyright authorship and readership within freedom of speech. Hong Kong’s attempt in combining statutory law with a non-statutory Code of Practice, although it failed owing to the lapse of the Bill, is worth documenting in its harmonization of the ontological separation between authorship and readership in cyberspace.

2.1 Introduction As mentioned above in Chapter 1, about one hundred years or so after going modern at the time of the Statute of Anne, copyright started its process of going global at the beginning of the Berne Convention era in the late nineteenth century, which reaches its maturity upon the conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).2 Upon the majority of copyright law going global, the advances in technology and broadband infrastructure development present an urgent need in copyright protection to “carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention” and to “devise new exceptions and limitations that are appropriate in the digital network environment.”3 In response to the challenges of the digital age, the World Intellectual Property Organization (WIPO) ratified two “Internet Treaties” in 1996; the treaties signified the beginning of the digital era in modern copyright law.4 Since then the need to update copyright protection in the digital era has led to the passage of the 1998 Digital Millennium Copyright Act (DMCA) in the USA,5 the 2001 Copyright Directive in the European Union (EU) and the 2003 Copyright and Related Rights Regulations in the United Kingdom. The USA’s DMCA, DOI: 10.4324/9781003163282-2

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for example, presents a “most sweeping revision ever” to the Copyright Act of 1976. As “part of the ceaseless struggle to keep up with the constantly evolving technology,” the DMCA is to “bring U.S. copyright law squarely into the digital age.”7 With comparative references to other jurisdictions, this chapter takes Hong Kong’s early digital copyright reform effort as a case study, to examine the copyright author-user ontological complexity in the tension between copyright vs free speech in copyright reform for the digital age. Hong Kong’s effort to adapt the current analogue copyright law—the 1997 Copyright Ordinance (Cap 528)—in the digital era started with a public consultation in 2006.8 The Copyright (Amendment) Bill 2011 is Hong Kong’s first significant effort adapting copyright protection to the digital environment. Proposed by the Hong Kong Government after building on public consultation and then further public engagement since 2006, the Bill was introduced to the Hong Kong Legislative Council (LegCo) in May 2012. Some pan-democratic LegCo members boycotted the Bill for fear that the criminalization of unauthorized communication of copyright works, which might cover works of satire or parody, would jeopardize the freedom of speech. The Bill was popularly categorized as “Cyberspace Article 23” in reference to the attempt to introduce anti-subversion legislation implementing Art. 23 of the Hong Kong Basic Law, which triggered massive demonstrations in 2003.9 The issue’s heated debates have travelled beyond Hong Kong and gained much international exposure.10 The issue in part reflects the kind of political controversy that also surrounded the election of the Chief Executive of the Hong Kong Government in early 2012. However, the issue goes beyond the political debate and hits a fundamental legal issue: when intellectual property rights collide with fundamental human rights, where is the boundary of the dynamics between these seemingly conflicting rights? With reference to similar situations in other jurisdictions, such as the USA and the EU, this chapter offers a critical analysis of the dynamics between copyright protection and freedom of speech in the context of Hong Kong’s current copyright amendment and its ontological implications. In the next section, Section 2.2, the chapter offers a brief examination of the development of Hong Kong’s copyright regime, the current debate around the apparent conflict between copyright and the right to freedom of speech, and the nature of the conflict in Hong Kong’s context. In Section 2.3, with reference to practice in both domestic and international legal frameworks, the chapter examines the jurisprudential implications of intellectual property rights as private rights when in tension with the right to freedom of speech as negative rights. The chapter reveals that the hidden, yet concrete claims of copyright protection and advocacy of freedom of speech in the form of parody of copyright works both aim at creating limitations on government authority, ultimately benefitting individual rights. Right-holders and users are indeed ontologically a unified whole against unwarranted governmental intrusion. Building on these findings, the chapter examines Hong Kong’s unique response of the Copyright (Amendment) Bill 2011 as a whole to the tension between copyright protection and the right to freedom of speech. The chapter suggests that the apparent conflict between copyright and freedom of speech depicted in Hong Kong’s “Cyberspace Article 23” debates is ontologically misleading as copyright’s protection of 6

46 The Origin of Copyright expression of ideas constitutes an indispensable part of the freedom of speech. The chapter argues that Hong Kong’s attempted model is unique, not only because the Bill accommodates various individual rights, but also because its “one regime, two systems” framework combines statutory law with a nonstatutory Code of Practice to define the liability of Online Service Providers (OSPs). In Section 2.4, the chapter concludes that Hong Kong’s efforts to adapt copyright protection for the digital era—and the “one regime, two systems” framework in particular—are ontologically the most accommodating to individual rights when compared with international practice. The Hong Kong model sheds light on the issue in other jurisdictions.

2.2 Internet Freedom and Readership Concerns in the Digital Age 2.2.1 Dynamics before Moving Analogue Copyright to the Digital Era Before 1997, copyright protection in Hong Kong operated under the United Kingdom Copyright Act 1956, which was extended to Hong Kong.11 Anticipating the return of the sovereignty of Hong Kong to China in 1997, the Basic Law of Hong Kong contained language that made reference to the localization of the Hong Kong Copyright Law.12 Hong Kong enacted the Copyright Ordinance (Cap 528) in 1997, which was modelled on the UK’s Copyright, Designs and Patent Act (CDPA) 1988.13 The Copyright Ordinance marked the beginning instead of the end of the localization of the Hong Kong Copyright Law, as the Copyright Ordinance 1997 had been amended seven times since 2000 and before Hong Kong’s efforts to reform copyright for the digital age in Copyright Bill 2011. The seven Amendments before Hong Kong’s digital copyright reform constitute various changes in response to the social and technological developments reflected in the tension between claims of copyright holders and the interests of the public in the analogue era. As a result of public consultation in early 1999, the first Amendment in 2000 criminalized the use of copyrights infringing products in business.14 However, this Amendment was widely criticized by the public for hampering information dissemination in enterprises and the education sector, and was therefore readjusted by the second amendment, the Copyright (Suspension of Amendments) Ordinance 2001, which narrowed the criminalization scope to computer software, movies, television dramas, and music recordings only.15 The social tension revealed in these two early amendments of the Copyright Ordinance can be seen as the analogue version of the tension between copyright holders and the public in relation to the tension between copyright protection and the free dissemination of information. The five subsequent amendments—namely the 2003 Amendment’s removal of parallel importation restrictions on computer software, the 2004 Amendment’s introduction of “copyshop offences”, and the clarification of the civil and criminal liabilities of end-user piracy in the 2007 and 2009 Amendments, as well as the 2020 Amendment’s print disability exceptions—are all adjustments of copyright law for the analogue era.

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The Copyright Ordinance before digital copyright reform of course offers copyright protection in the digital environment too. The Chan Nai Ming case, for example, prosecuted the defendant’s attempt to distribute infringing copies of three movies through BitTorrent under s 118(1)(f), now s 118(1)(g) of the Copyright Ordinance (Cap 528), which states that unauthorized distribution of an infringing copy of the work otherwise than for the purpose of trade or business— to such an extent as to affect prejudicially the copyright owner—constitutes an offence.16 However, the Ordinance is generally considered as a copyright law of the analogue era which, with the rapid development of information technology, does not fit well into the digital environment.17 To adapt copyright protection to the digital environment and bring Hong Kong’s copyright in line with WIPO’s two Internet Treaties thus bears its fundamental importance. As “analogue copyright laws”, the Copyright Ordinance 1997 and its seven amendments reveal the tension of intellectual property rights (IPRs) protection for right holders and the interests of the general social public. The 2001 Copyright (Suspension of Amendments) Ordinance that limited the 2000 Amendment’s criminalization of copyright infringement (owing to strong public criticism) aptly reflects this tension. Some research indicates that the private-public tension reveals itself in other ways. In his examination of the implementation of WIPO Copyright Treaty 1996’s anti-circumvention and rights management information protection provisions in Hong Kong and Australia and its impacts on the privacy of accessing digital works, Greenleaf revealed an unwelcome picture of property-privacy dynamics.18 Greenleaf argued that privacy in both places has been unduly prejudiced in favour of property and suggested recognizing privacy interests as part of copyright’s public domain to “counter the copyright maximalism which seeks to make private property interests predominate over all other interests.”19 Other early research on Hong Kong’s Copyright Law reform revealed an imbalance between the overprotection of copyright holder’s interests against the interests of the public.20 Pun argued that Hong Kong’s current Copyright Ordinance “is overprotective of the copyright owners” to the disadvantage of education and the software industry as the users of the copyright works and the imbalance should be readjusted.21 Copyright’s private-public ontological dynamics in the analogue era eventually reveals itself differently in the digital environment with a fresh copyright ontological tension between right holders and users with government. As we will see in the next section, the debates around “Cyberspace Article 23” in Hong Kong during legislative readings of the Copyright (Amendment) Bill 2011 reveal a tension between property right claims and the right to freedom of speech—an ontological interdependence complicated further by the political debates surrounding government-led political reform. 2.2.2 “Cyberspace Article 23” and Copyright Digital Reform When Hong Kong signed the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty in 2008, the analogue copyright era in Hong Kong came to an end. The effort to adapt copyright protection to the digital

48 The Origin of Copyright environment, however, started earlier than this. The Hong Kong Government initiated a public consultation on “Copyright Protection in the Digital Environment” in 2006 and issued a “Preliminary Proposal for Strengthening Copyright Protection in the Digital Environment” for further public engagement in 2008.22 The final report of the public consultation, “Proposals for Strengthening Copyright Protection in the Digital Environment” released in November 2009, lays the foundation of the Copyright (Amendment) Bill 2011. The Bill was gazetted on 3 June 2011, and a LegCo Bills Committee was established to scrutinize the Bill at the House Committee Meeting on 17 June 2011. The purpose of the 2006 public consultation was to better adapt copyright protection to the digital environment. The Consultation was initiated to review the efficacy of the current copyright regime, to balance competing interests among right-holders, users, and industry, and to facilitate the sustainable development of creative industries via strengthening copyright protection.23 Key issues included the legal liability for unauthorized communication of copyright works, the introduction of an “all embracing right of communicating copyright works to the public”, OSPs’ liability, and the mechanism facilitating civil actions against internet piracy.24 Perspective varies among different stakeholders. During this 2006 Consultation, users were mostly concerned about the negative effects of the right of communication in hampering the free flow of information and freedom of speech, and opposed any criminalization that might dampen Hong Kong’s development as an internet service hub. Copyright holders, however, suggested that the right of communication was consistent with the right in WIPO Copyright Treaty to be underpinned by criminal sanctions, and reiterated that criminalization was the most effective means of piracy control and that it would not affect legitimate use of the Internet.25 Building on the 2006 public consultation, the Government issued preliminary proposals in 2008 for further public discussion, which suggested recognizing the right of communication through criminal sanctions against unauthorized online transmission through streaming technology.26 In the process of the 2008 public engagement, users supported a right of communication without any criminal sanction attached, and suggested that criminalization of streaming in non-commercial context would inhibit the free flow of information. Copyright owners, for their part, suggested all-embracing, technology-neutral criminal sanctions regardless of technology and commercial motivation to go beyond criminalizing streaming in a non-business context. OSPs suggested that legislation should be technology-neutral and mostly supported the right of communication with hesitation as to imposing new criminal sanctions.27 In the Administration’s final proposals, which were released in November 2009, the Government tried to maintain a balance between right holders, users, and the internet service sector. To avoid over-regulation limiting the development of the internet service sector, the Report introduced a statutory limitation on OSPs liability and a copyright exception for temporary reproduction of copyright works. To recognize the interests of the copyright users, the Report introduced a media-shifting exception for sound recordings which allowed users to copy and change a copyright work between different formats or mediums.28

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The most significant proposal—and probably the most controversial one—was to recognize the copyright holders’ right of communicating their works through any mode of electronic transmission and to criminalize unauthorized communication of copyright works. Under the current Copyright Ordinance (Cap528), copyright holders’ interests are protected only in certain specific modes of transmitting a copyright work, including making it available to the public through wire dissemination or wirelessly, broadcasting it, or including it in a cable programme service.29 It should be noted here that the WIPO Copyright Treaty recognizes that “authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means.”30 Under the Copyright (Amendment) Bill 2011, new sections were added to provide right holders the exclusive right “to communicate the work to the public” and stated that “the communication of a work of any description to the public is an act restricted by the copyright in the work.”31 This new exclusive right of communicating copyright works to the public extends the reach of copyright protection in the digital environment. In this connection, the current Copyright Ordinance’s references to “making available to the public of copies of works”—in ss 8, 9, and 26, for example—are repealed as works can be communicated to the public in different forms and no formal copy is needed anymore in the digital era. To effectively protect this all-embracing right of communication, a new section was added to the Copyright Ordinance to criminalize a person who communicates the work to the public without the licence of the right’s holder of the copyright work. According to the Bill, a person commits an offence, if the person, without the licence of the copyright owner, communicates the work to the public for commercial purpose or communicates the work to the public “to such an extent as to affect prejudicially the copyright owner” in a non-business context.32 2.2.3 Copyrights vs Free Speech in Analogue and Digital Environment The provision of this technology-neutral yet all-embracing and exclusive right of communication to copyright holders and the criminalization of unauthorized communication of copyright works to the public triggered intense debates in Hong Kong. When the Bill came to the LegCo reading, Hong Kong’s public criticism on the Copyright (Amendment) Bill 2011 concentrated very much on the Bill’s potential negative effects on freedom of speech. As no explicit exemption for digital parody of copyright works was found in the amendment, the Bill is considered, by the pandemocratic parties in particular, as a threat to the freedom of speech and a danger to internet freedom in Hong Kong. The pan-democratic activists and supporters boycotted the reading of the Bill in the LegCo and denigrated the Bill as being “Cyberspace Article 23.”33 The “Article 23” metaphor frames the issue as a conflict between property rights and freedom of speech and highlights the general public’s distrust of the Hong Kong Government. The Government’s recognition of copyright owners’ all-embracing right of communication with certain criminal sanctions attached has been considered as an erosion of the fundamental human rights of the public: the freedom of speech in the form of satire or parody of copyright works.

50 The Origin of Copyright To perceive copyright protection as something against fundamental human rights is nothing new. To some extent, the apparent conflict between copyright protection and freedom of speech in the “Cyberspace Article 23” debates is the digital era version of the social tension revealed in two early amendments of Hong Kong’s Copyright Ordinance. The second amendment, the Copyright (Suspension of Amendments) Ordinance 2001, narrowed the criminalization scope stipulated in the previous amendment to readjust the balance between copyright protection for right-holders’ interests and information dissemination in enterprises and the education sector.34 Nor is the apparent conflict between copyright protection and fundamental human rights anything local. In a case decided by the Court of Justice of European Union (ECJ), Scarlet Extended SA v. SABAM, the tension between copyright and free speech came under the public spotlight again.35 In this case, the injunction sought by the copyright holders against businesses that refused to install filtering systems preventing peer-to-peer (P2P) file-sharing for piracy control was found to be in breach of freedom to information.36 According to the ECJ, “in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property on the one hand, and the freedom to conduct business, the right to protection of personal data, and the freedom to receive or impart information, on the other.”37 Among others, the most common concern in the tension between copyright protection and fundamental human rights is the conflict between copyright and free speech, as reflected in Hong Kong’s “Cyberspace Article 23” debates. Even back in the copyright analogue era, the United States has long had this debate on the tension between copyright and free speech.38 The US Supreme Court’s decisions in Harper & Row in 1985, in Eldred v. Ashcroft in 2003 and in Golan v. Holder in 2011 are several landmark cases along the line of the debates on whether copyright protection has eroded the free speech guarantee under the First Amendment of the US Constitution. In Eldred v. Ashcroft for example, the US Supreme Court’s comprehensive delineation of the compatible relationship between copyright and free speech was much debated.39 Like what happened in Hong Kong’s “Cyberspace Article 23” debate, the tension between copyright and free speech from the analogue era has regained its life in the digital age. As early as the USA’s DMCA, for example, many concerns have been raised about the negative effects the protection of copyright online on freedom of speech.40 In the United Kingdom, the 2010 Digital Economy Act (DEA) triggered similar concerns. In 2012 the British Parliament approved the DEA to authorize the suspension of internet service for those who repeatedly downloaded copyright materials illegally, causing similar ripples among the public.41 The AntiCounterfeiting Trade Agreement (ACTA) negotiated by the USA and its partners triggered similar debates in Europe and the USA.42 As a regional trade agreement which aims to establish an international framework for controlling copyright and trademark infringement, ACTA was signed by the proposers the USA and Japan, six other countries such as Australia and Canada in October 2011, and the EU in January 2012. According to ACTA, criminal and civil enforcement procedures

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“shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes.”43 This was interpreted by the public as a green light for cracking down on the digital parody of copyright materials, which might endanger the right to freedom of speech.44 In the USA too, ACTA drew a lot of social attention.45 Yu suggested that ACTA could undermine the promotion of human rights, civil liberties, and in particular free speech and press throughout the world.46 The ACTA issue and the United Kingdom’s DEA issue echo the debates surrounding Hong Kong’s copyright amendments for the digital era, leading us back to the question of the boundary of the dynamics between individuals and the government when IPRs meet human rights. This central question brings us into the examination of the nature of copyrights as private rights and the negative right nature of free speech as a fundamental human right, which further reveals the ontological interdependence between copyright holders and users—a copyright ontological unity that has unfortunately been complicated by the political debates surrounding government-led political reform in Hong Kong.

2.3 Copyright Ontology When Copyrights Meet Human Rights 2.3.1 Copyrights as Private Rights and Negative Rights At the center of Hong Kong’s “Cyberspace Article 23” issue is the apparent conflict between right holders’ copyright interests and the freedom of speech of the users, which leads us to the question of the nature of copyright protection. As Hong Kong has long been a member of the Berne Convention and was a founding member of the WTO’s TRIPS Agreement, this section looks to international jurisprudence for insights into the issue in Hong Kong’s context.47 In general, international jurisprudence recognizes IPRs as private rights that hold a certain public dimension. On the one hand, under the TRIPS regime, IPRs are recognized as private rights.48 Being recognized as private rights, “[a]cquisition procedures for substantive rights and civil enforcement procedures generally have to be initiated by the right holder and not ex officio.”49 In China–Intellectual Property Rights, the WTO Panel went through the provisions in relation to IPRs enforcement in the TRIPS Agreement and concluded (ibid.) that “a condition that authority shall only be available upon application or request” is “assumed” in the TRIPS Agreement. On the other hand, in addition to the private right nature, the TRIPS Agreement also recognizes “the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives.”50 According to the TRIPS Agreement: [t]he protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.51

52 The Origin of Copyright The objectives of IPRs protection, therefore, are to promote technological innovation and technology dissemination, as well as social and economic welfare. Under the TRIPS regime, IPRs can be limited for the purpose of promoting public interests, and WTO members can adopt necessary measures as appropriate to “prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.”52 Consequently, while recognized as private rights, IPRs also have a dimension of public interests. However, the public dimension of the IPRs does not change the private right nature of IPRs. In China–Intellectual Property Rights, one of the key questions was whether the government’s sovereign power to censor and prohibit unconstitutional and illegal publications can also deny copyright protection to those works. China invoked Article 17’s “sovereign exception” of the Berne Convention (1971) and suggested that sovereign powers may deny copyright protection to unconstitutional and illegal publications.53 According to the Berne Convention 1971: [t]he provisions of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right.54 However, China’s claim was rejected, as the WTO Panel considered the private right nature of copyright to override the sovereign power of censorship. The Panel concluded that “copyright and government censorship address different rights and interests”, and that “[c]opyright protects private rights… whilst government censorship addresses public interests.”55 The private right nature is therefore fundamental and overriding, particularly when confronted with public interests, at least in the realm of intellectual property protection. The recognition of copyrights’ overriding nature as private rights is in fact in line with general intellectual property jurisprudence founded on classic theories of private property as was revealed above.56 It has long been well established in jurisprudence that the justification of intellectual property protection is grounded on either Hegelian or Lockean theories of private property.57 In Locke’s labour-oriented theory, the injection of labour, by separating something belonging to “mankind in common” into private property, justifies the autonomy of the private which safeguards the individuals from intrusion from others and the public.58 In Hegel’s free will oriented property theory, the objectivization of free will into something external creates private property as well as justifying the autonomy of the private sphere.59 Under either Lockean or Hegelian theory, private property gains its fundamental significance in modern society. Bentham indicates this significance by saying that “[p]roperty and law are born together, and die together.”60 Hayek even argued that private property “is the heart of the morals of any advanced civilization.”61 Property’s overriding nature of private rights not only justifies private property constitutional significance, but also constructs its second nature as negative rights.

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On the one hand, private property is accorded equal protection to liberties such as freedom of speech or freedom of religion, and has been regarded as one of the fundamental rights to be protected in law. Locke defines life, liberty, and property (called “estates” at that time) as the three basic human rights.62 This line of heritage continues in the Bill of Rights of the US Constitution, which states “[n]o person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”63 On the other hand, the overriding nature of private rights also constructs property rights’ dual nature as both positive rights and negative rights at the same time. As alienable rights, property rights of course are “positive rights” that “entitl[e] a person to have another do some act for the benefit of the person entitled.”64 Moreover, as the rights defend the individuals’ autonomy by shielding individuals from unwarranted intrusion from the public and the government, property rights are also “negative rights” that “entitl [e] a person to have another refrain from doing an act that might harm the person entitled.”65 The property right clause in the UN Universal Declaration of Human Rights illustrates this “double nature” clearly. While the assertion that “[e]veryone has the right to own property alone as well as in association with others” indicates the positive right nature, the statement that “[n]o one shall be arbitrarily deprived of his property” reveals the negative right nature of private property.66 Building on either Lockean or Hegelian theory, intellectual property gains its fundamental importance, as both Lockean and Hegelian theories of property justify private property’s separation from the social public and through this separation safeguard the autonomy of individuals.67 The fundamental private right nature creates a boundary for the government, which shields the private right holders from public intrusion and further constructs the negative right feature of IPR. In EC–Trademarks and Geographic Indications, the WTO Panel delineated the logic of how the negative right feature of the IPRs derives naturally from its private right nature.68 In the discussion of the principle in Art. 8 of the TRIPS Agreement allowing members to limit IPRs for the promotion of public interests, the Panel pointed out that the “fundamental feature of intellectual property protection” is that “the TRIPS Agreement does not generally provide for the grant of positive rights to exploit or use certain subject matter, but rather provides for the grant of negative rights to prevent certain acts.”69 Therefore, copyrights in particular or IPRs in general are private rights as well as negative rights. On the one hand, IPRs are private rights, as the initiation of the “acquisition procedures for substantive rights and civil enforcement procedures” is generally the responsibility of the right holders. From this perspective, IPRs are positive rights and private rights that can be realized through private actions. On the other hand, IPRs are also negative rights in the form of restraining governments from certain acts. In this regard, property rights—including IPRs—are recognized as one of the three fundamental human rights, together with life and liberty. 2.3.2 Copyright vs Free Speech: the Ontological Interdependence When we treat both property and liberty as fundamental human rights, the apparent conflict between copyright protection and the safeguard of freedom of

54 The Origin of Copyright speech presents us with a dilemma. Several questions will need to be clarified. Are they really in conflict? What are they claiming? These questions lead us to a brief examination of the nature of these rights. Contrary to the common belief in the conflict between copyrights and freedom of speech in “Cyberspace Article 23” debates, these two kinds of rights are complementary instead of contradictory. First of all, copyright and freedom of speech were born together in history. While modern copyright law is considered as starting from the 1710 British Statute of Anne at the dawn of the Industrial Revolution with the advent of printing press, the birth of the concept of a copyright ownership was developed earlier in the process of free speech’s fight against censorship.70 The freedom of expressing ideas and the benefits of prohibiting unauthorized copying were both the result of submitting the author to the sovereign’s censorship.71 Coombe’s description of the emergence of the Romantic authorship explained well the intertwined relationship between copyright and freedom of speech: [a]s long as the author does not copy another’s expression, he is free to find his themes, plots, ideas, and characters anywhere he pleases, and to make these his own … Any attempts to restrict his ability to do so are viewed as censorship and as an unjustifiable restriction on freedom of expression.72 This intertwined relationship between copyright and free speech was similarly argued by the US Supreme Court in Eldred v. Ashcroft in proving that copyright and free speech are indeed compatible. The US Supreme Court suggested that: [t]he Copyright Clause and the First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with the free speech principles. Indeed, copyright’s purpose is to promote the creation and publication of free expression.73 Second, copyright and freedom of speech address different aspects of expression. On the one hand, copyright protects the expression of thoughts and ideas. Ideas and thoughts themselves, however, are not copyrightable.74 It has been well established in jurisprudence that copyright laws “protect only the form of expression and not the ideas expressed.”75 Freedom of speech, on the other hand, is to ensure that the expression of ideas encounters no improper restraints. As has been argued, the “essential thrust” of the freedom of speech “is to prohibit improper restraints on the voluntary public expression of ideas.”76 However, the form of expression might be subject to certain restraints, including of course those restraints coming from copyright protection.77 As the crystallization of the UN Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights recognizes that exercise of the right to freedom of expression “carries with it special duties and responsibilities” and is subject to certain legal restrictions.78 “Concerning the First Amendment,” the US Supreme Court suggested in Golan v. Holder that “some restriction on expression is the inherent and intended effect of every grant of copyright.”79 Therefore, copyright

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and freedom of speech are in fact complementary. By “supply[ing] the economic incentive to create and disseminate ideas”, copyright is intended “to be the engine of free expression.”80 According to the US Supreme Court, therefore, “the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas” embodies the protection of freedom of speech.81 By protecting the expression of ideas, copyright is an indispensable part of defending, not eroding, freedom of speech. Not only are they complementary, there is a shared ontological interdependence between copyright and freedom of speech, as they imply the same limitation of arbitrary interference from governments, as they are both essentially “negative rights.” In general, human rights are commonly categorized into either positive rights or negative rights.82 Attainment of positive rights usually does not directly lead to any government obligations. An example of positive rights would be the right to well-being.83 The existence of poverty, however, does not indicate the Government’s violation of the positive human rights. Negative rights are different. Freedom of speech, together with most of the civil and political rights—the socalled first generation human rights, including freedom of religion and freedom of association etc., is generally considered as one of the “negative rights,” which falls into a class of rights protecting individuals’ freedom from unwarranted infringements by governments.84 The guarantees of this class of rights take the form of restraints on governments. As to freedom of speech, the US Constitution, for example, states clearly that “Congress shall make no law … abridging the freedom of speech.”85 Any government censorship then might be a violation of the freedom of speech. Any law passed that limits the freedom of speech will be then unconstitutional. Freedom of speech as a civil and political right is to defend individuals’ liberty from government intrusion. Similarly, the UN Universal Declaration of Human Rights states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”86 Any cruel treatment or punishment of criminal suspects from a government might be then a violation of human rights. As negative rights, civil, and political rights are weapons for individuals to fight against governments. As revealed in the discussion above, property rights too are essentially negative rights, which are recognized as fundamental human rights together with life and liberty. As negative rights, property rights safeguard the autonomy of individuals against any unwarranted interference from governments, which lays down the foundation of the modern society. As illustrated in the case China–Intellectual Property Rights, copyrights as negative rights set the limit of government censorship which might have been justified under Art. 17 of the Berne Convention. As negative rights, both freedom of speech and copyrights set limits on the government when government interference is in conflict with private autonomy. Instead of conflicting with each other, both copyrights and freedom of speech have government’s unwarranted interference as the common “enemy.” In this regard, copyright and free speech have a shared ontological interdependence in individual’s defense of autonomy against government intrusion.

56 The Origin of Copyright Therefore, the common perception of the conflict between the all-embracing right of communication to the copyright holders and the freedom of speech of the public in the “Cyberspace Article 23” debates is somewhat misleading or ontologically flawed. What copyright laws protect, the expression of ideas, is an essential part of the freedom of speech. Moreover, proprietary interests of right holders over copyrights and freedom of speech of individuals are complementary and equal as they are both fundamental rights of individuals. No one’s freedom of speech can naturally override others’ property rights.87 In Harper & Row for example, the US Supreme Court indicated clearly that the freedom of speech embedded in the First Amendment does not at all shield speech that violates another’s copyright.88 Moreover, as these two rights are both negative rights of individuals, they share an ontological interdependence in guaranteeing an overriding interest against unwarranted government interference. In this regard, the hidden yet real conflict in the “Cyberspace Article 23” debates, as well as in DEA issue in the United Kingdom and ACTA concerns in the USA and the Europe, is the tension between right holders’ property interests and users’ freedom of speech interests on the one hand and government’s regulatory interference on the other. 2.3.3 Copyright “One Regime, Two Systems” Ontology in the Digital Era The analysis above indicates that the apparent conflict between copyright and freedom of speech conceals the real contention between the individuals and the Government during Hong Kong’s copyright amendment process. The overwhelming criticism of “Cyberspace Article 23” indicates that the public’s distrust of the Government is leading to the concern that the Government’s proposals might have crossed the line in the individual-government dynamics. How has the Bill of “Cyberspace Article 23” portrayed the boundary of the individuals-government dynamics as to copyright protection in the digital era? Ever since the beginning of the public consultation, Government Authority has been trying to solicit views from right holders, users and industry. As mentioned above however, copyright holders, user groups, and OSPs from the internet service sector indicated different, often conflicting perspectives during the process of public consultation and further engagement. The Copyright (Amendment) Bill 2011 reflects a carefully crafted yet somewhat delicate balance between right holders versus users and OSPs. In terms of issues relating to users’ various individual rights, the Bill in fact appears to be quite conservative. First of all, to protect users’ right of access to the Internet, Hong Kong’s Copyright (Amendment) Bill 2011 rejects the suggestion of a “graduated response” system that might have negative effects on users’ access to the Internet. Copyright owners, the International Federation of the Phonographic Industry, for example, have been pressing for the introduction of a “graduated response” system that allows OSPs to suspend repeat infringers’ internet access if they disregard warning notices three times.89 Some jurisdictions, such as the United Kingdom, France, South Korea, New Zealand, and Taiwan, have introduced the “graduated response” system into law to combat copyright online infringements.90 The application of

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the “graduated response” system, however, stirs up a lot of debate about its impact on civil rights and liberty.91 Therefore, the Bill suggests that “it is not an opportune time to consider introducing such a system in Hong Kong,” as the “graduated response” system “is clouded by debates over its implications on civil rights and liberties even in jurisdictions where legislation introducing the system has been passed.”92 Second, the copyright owners’ all-embracing right to communication as newly introduced in the Bill covers all modes of electronic transmission for copyright works, with relevant criminal sanctions against the infringers, and thus provides adequate protection to copyright holders. To be consistent with demands from the advances of new technology, in particular “streaming” technology, the preliminary proposal suggests criminalizing the communication of copyright works through “streaming” technology in non-commercial contexts to catch P2P filesharing.93 While copyright owners consider it to be too technology-specific to cover new forms of infringements, users suggest that the criminalization of streaming in the non-business context might “inhibit free flow of information.”94 The Bill considers the concept of criminal sanctions against large-scale infringing activities that cause prejudice to the copyright owners to be already available in the current Copyright Ordinance. In balancing the conflicts of interests between copyright owners and users, the Bill takes a rather conservative move. It does not introduce new criminal liability pertaining to activities of P2P file-sharing and unauthorized downloading—as right holders insisted—except for active acts making unauthorized communications to the public.95 Third, the Bill also maintains the “Norwich Pharmacal” principle, which puts right holders’ requests for disclosure of the identity of infringers under the court’s scrutiny. During early public consultation, however, copyright owners considered the “Norwich Pharmacal” proceedings to be “complicated, timely and costly”, which “severely inhibited right holders’ incentive to take legal actions.”96 Some copyright holders therefore supported introducing a simpler and more expedient infringer identity disclosure mechanism similar to the US subpoena system to be provided under the Copyright Ordinance.97 Users, however, expressed concerns about potential misuse of personal data and the disclosure mechanism’s “chilling effect on freedom of expression.”98 The Bill’s favour of maintaining the “Norwich Pharmacal” principle over introducing a US-like subpoena system indicates the effort of achieving a delicate balance between the users and the copyright holders, yet it appears to be skewed more towards copyright users’ interests. This Bill’s attention to the right of access to the Internet, personal privacy and freedom of speech indicates the Government’s self-restraint in relation to individual rights during the copyright amendment process. The Government’s solicitation of views from right holders, users and industrial sectors during the amendment process shows intentional or unintentional self-restraint from over-intrusion into the balance of interests among authorship, entrepreneurship, and readership in the digital environment. This is particularly true in the authority’s effort to enlist the support of the OSPs in the combat against online privacy through developing a voluntary code of practice for OSPs in fighting online copyright infringements via a Tripartite Forum.

58 The Origin of Copyright As proposed in the 2008 Preliminary Proposals, the Tripartite Forum comprising representatives of right holders in the content industry such as the Motion Picture Association, online service providers like the Internet Professionals Association and user groups was established in July 2008.99 Building on stakeholders’ collaborations through the Tripartite Forum, the Bill introduces a whole new section of statutory limitations on the liability of OSPs in combating online piracy through a distinctive way to balance the interests of the right holders, the users and the OSPs.100 The Bill authorizes the CEDB Secretary to publish a non-statutory Code of Practice for providing practical guidance such as the “Notice and Notice” and “Notice and Takedown” practices which were codified in the United Kingdom and the USA.101 Having satisfied the requirements in the non-statutory Code of Practice, it will create a safe harbor shielding OSPs from certain legal liabilities of copyright infringement.102 As the Code of Practice is not statutory but supplementary in defining the legal liability of OSPs, the Bill creates a model of “one regime, two systems”— combining statutory law with a non-statutory Code of Practice—in copyright protection pertaining to OSPs’ liability.103 The authority’s active engagement with views from copyright holders, users, and industry in public consultation and its allowing the Tripartite Forum to come up with a Code of Practice defining OSPs’ legal liability indicates Hong Kong’s unique model of adapting copyright protection to the digital era. The Authority’s selfrestraint in refraining from over-intrusion into the tripartite stakeholders’ balance of interests—handling private rights privately—confirms our analysis of the private right nature of copyrights and copyrights’ complementary relationship to freedom of speech. As copyrights and right to freedom of speech are both negative rights against unwarranted intrusion from the government, the authority’s retreat is obviously desirable and would increase the legitimacy of the legislation process. Although it might have been unintended, the Government Authority’s self-restraint in the Bill did show respects to copyright and free speech’s shared ontological interdependence in defending autonomy against public intrusion. The Bill’s “one regime, two systems” model of copyright protection—combining statutory law with a non-statutory Code of Practice to define OSPs’ liability—deserves positive recognition. Hong Kong’s “one regime, two systems” model also provides positive insights into balancing the conflicting interests of authorship, entrepreneurship, and readership in copyright protection in the digital environment in the United Kingdom, the EU and other jurisdictions.

2.4 Conclusion: Readership and Copyright Ontological Integrity The tension between the copyright owners’ interests and the social public as revealed in Hong Kong’s “Cyberspace Article 23” debates is indeed nothing new. There has also been social tension between copyright owners and the public in relation to copyright protection versus free dissemination of information in Hong Kong’s two early amendments of the Copyright Ordinance for the analogue era.104 Neither is the social tension local to Hong Kong only at all. The ACTA controversies in the USA and the EU, the critiques of the “graduated response”

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system in France and the DEA debates in the United Kingdom all reveal the tension between copyright owners and the social public in one way or the other. The real issue here actually travels beyond the realm of copyright law onto the ontological complexity of political being. As revealed above, the apparent conflict between right holder’s interest in copyright protection and the public’s concern of the limitation of copyright protection on freedom of speech is misleading and ontologically flawed. While copyright protects the ideas’ expression, the right to freedom of speech protects the expression of ideas. These two are not necessarily in conflict with each other. Rather, both copyrights and the right to freedom of speech are negative rights, shielding individuals from unwarranted intrusion from the government. Therefore, copyright protection forms an integral part of the freedom of speech. Both copyright and free speech share with one another an ontological interdependence in defending individuals’ autonomous against government’s unwarranted intrusion. The common perception of the apparent conflict between copyright protection and freedom of speech in Hong Kong’s “Cyberspace Article 23” debates conceals the common distrust of the government from both copyright holder and the user public. Contrary to the common perception, in minimizing government’s intrusion in the balance of interests among authorship, readership and entrepreneurship in copyright protection, Hong Kong’s “one regime, two systems” model provides insights for balancing conflicting interests in adapting copyright protection to the digital era. The public’s fear of unwarranted government interference in freedom of speech as indicated in the “Cyberspace Article 23” debates should not be solved within the framework of the copyright amendment alone. As the analysis above indicates, this distrust of the government is not exactly copyright related at all. Government’s possible interference in the freedom of speech is a serious constitutional issue to be dealt with somewhere else instead of in the copyright amendment framework. Moreover, boycotting the copyright amendment under the banner of individuals’ freedom of speech is unfortunately endangering individuals’ freedom of speech as copyright’s protection of the expression of ideas is essentially the core value of the freedom of speech. As seen in Hong Kong’s failure of copyright reform for digital age, as well as debates surrounding copyright reforms in the USA, the EU, or elsewhere, copyright and free speech’s ontological interdependence has been unfortunately complicated by public distrust in government-led political reform.

Notes 1 An earlier version of this chapter has been published. Wenwei Guan, “When Copyrights Meet Human Rights: ‘Cyberspace Article 23’ and Hong Kong’s Copyright Protection in the Digital Era.” 42(3) Hong Kong Law Journal (2012), 785–808. Revision of the article included in this book with permission from the publisher, Sweet & Maxwell Asia, ©2012. 2 For a brief account of copyright’s development in historical perspective going modern, global, and digital, see discussion supra 1.1.1. 3 Footnote 9, Agreed Statement concerning Art. 10, WIPO Copyright Treaty 1996 (WCT).

60 The Origin of Copyright 4 The 1996 WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) together are called the “Internet Treaties.” 5 Pub. L. No. 105–304, 112 Stat. 2860. 6 David Nimmer, “A Riff on Fair Use in the Digital Millennium Copyright Act,” 148(3) University of Pennsylvania Law Review (2000), 673, 674. 7 David Nimmer, “A Riff on Fair Use in the Digital Millennium Copyright Act,” 680–681. 8 The Commerce and Economic Development Bureau of Hong Kong Government (CEDB Hong Kong), “Copyright Protection in the Digital Environment”, 2006 (the 2006 Public Consultation Report thereafter). The Report is available through the Hong Kong Intellectual Property Department official website at www.ipd.gov.hk/eng/intel lectual_property/copyright/digital_environment.htm (accessed 22 December 2020). 9 Under the Art. 23 of the Hong Kong Basic Law, the Hong Kong Government “shall enact laws on its own to prohibit any act of treason, secession, sedition, [or] subversion” against the Central Government. The Hong Kong Government initiated the legislation process in 2002, which triggered significant controversy and division in Hong Kong. Fearing that Art. 23 legislation might erode freedom of speech, massive street demonstrations erupted in 2003. The Bill was then withdrawn and postponed indefinitely. For the political controversy of the issue, see Wong Yiu-chung, “‘Super Paradox’ or ‘Leninist Integration’: The Politics of Legislating Article 23 of Hong Kong’s Basic Law,” 30(2) Asian Perspective (2006), 65–95. 10 This controversy of “Internet Freedom” was noted in the Human Rights Report by the US Bureau of Democracy, Human Rights and Labor (USDRL) that Hong Kong’s activists complained that the Copyright Bill “prohibiting unauthorized use of copyright material in any medium without permission would threaten freedom of speech”, and without fair-use exception, “would negatively affect works of satire or parody on the Internet.” See USDRL, 2011: Country Report on Human Rights Practices in China. See also, AFP Report, “Hong Kong Artists Cry Foul over Copyright Bill”, 20 May 2012. Available at http://newsinfo.inquirer.net/196747/hon g-kong-artists-cry-foul-over-copyright-bill (accessed 22 December 2020). 11 Michael D Pendleton and Alice Lee, Intellectual Property: A Guide to the Law in Hong Kong (with reference to the development in China) (Hong Kong: Butterworths Asia, 2001), 67–69. The application of the UK Copyright Act 1956 was also supplemented by the Hong Kong enacted short legislation, the Copyright Ordinance (Cap 39) promulgated in 1970. 12 Under Art. 140 of the Hong Kong Basic Law, “[t]he Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on culture and protect by law the achievements and the lawful rights and interests of authors in their literary and artistic creation.” 13 Charn Wing Wan, “The Challenge of the Criminalization of Online Piracy in Hong Kong,” 3(10) Journal of Intellectual Property Law & Practice (2008), 666. 14 This Amendment came into effect on 1 April 2001. 15 General information about these two Copyright Ordinance amendments and other four amendments discussed in this section is available through the official webpages of the Intellectual Property Department of Hong Kong at www.ipd.gov.hk/eng/cop yright.htm (accessed 22 December 2020). 16 Chan Nai Ming v. HKSAR [2007] 2 HKLRD 489, [2007] 3 HKC 255, CFA. The case is commonly called the Big Crook case. 17 Wan, “The Challenge of the Criminalization of Online Piracy in Hong Kong,” 667. 18 Graham Greenleaf, “IP, Phone Home: Privacy as Part of Copyright’s Digital Commons in Hong Kong and Australian Law,” in Lawrence Lessig, ed., Hochelaga Lectures 2002: The Innovation Commons (Hong Kong: Sweet & Maxwell Asia, 2003), 12–67. 19 Greenleaf, “IP, Phone Home,” 67.

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20 K. H. Pun, “Reform of Copyright Law in Hong Kong: Time to Redraw the Balance,” 32(1) Hong Kong Law Journal (2002), 83–102. 21 Pun, “Reform of Copyright Law in Hong Kong,” 97. 22 These Reports by the CEDB Hong Kong are available through HKIPD official website at www.ipd.gov.hk/eng/intellectual_property/copyright/digital_environm ent.htm (accessed 22 December 2020). 23 CEDB Hong Kong, the 2006 Public Consultation Report, ii–iii. 24 Ibid. 25 CEDB Hong Kong, “Preliminary Proposals for Strengthening Copyright Protection in the Digital Environment” (April 2008, thereafter the 2008 Preliminary Proposals), Annex A. 26 Ibid., the 2008 Preliminary Proposals. 27 CEDB Hong Kong, “Proposals for Strengthening Copyright Protection in the Digital Environment,” LC Paper No. CB(1)341/09–10(08), (November 2009, thereafter the 2009 Final Report), Annex B. The proposal is available at LegCo Official site at: www. legco.gov.hk/yr09-10/english/panels/ci/papers/ci1117cb1-341-8-e.pdf (accessed 22 December 2020). 28 CEBD Hong Kong, the 2009 Final Report, 2–7. 29 See mainly “the acts restricted by copyright in a work”, s 22(1)(d) and s 22(1)(f), Copyright Ordinance (Cap 528). 30 Art. 8, the WIPO Copyright Treaty 1996. See also, Art. 11.10.1, RCEP. 31 Section 22(1)(fa) and s 28A, Copyright (Amendment) Bill 2011. The Bill is available via Hong Kong Legislative Council (LegCo) web site at www.legco.gov.hk/ yr10-11/english/bills/b201106033.pdf (accessed 22 December 2020). 32 Newly added s 118(8B), Copyright (Amendment) Bill 2011. 33 USDRL, 2011: Country Report on Human Rights Practices in China. 34 See discussion supra 2.2.1 for more details. 35 Enrico Bonadio and Mauro Santo, “ISPs Cannot be Ordered to Adopt General and Preventive Filtering Systems,” 7(4) Journal of Intellectual Property Law & Practice (2012), 234–236. 36 Scarlet Extended SA v. SABAM, C-70/10, decided by the ECJ on 24 November 2011. 37 Scarlet Extended SA v. SABAM, para. 53. 38 See, eg, Paul Goldstein, “Copyright and the First amendment,” 70 Columbia Law Review (1970), 983–1057; Melville B. Nimmer, “Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?” 17 UCLA Law Review (1970), 1180–1204; Robert C. Denicola, “Copyright and Free Speech: Constitutional Limitations on the Protection of Expression,” 67 California Law Review (1979), 283–316. See also, Neil Weinstock Netanel, Copyright’s Paradox (NY: Oxford University Press, 2008). 39 See, e.g., Pamela Samuelson, “The Constitutional Law of Intellectual Property after Eldred v. Ashcroft,” 50 Journal of Copyright Society U.S.A. (2002–2003), 547–579; Michael D. Birnhack, “Copyright Law and Free Speech after Eldred v. Ashcroft,” 76 Southern California Law Review (2003), 1275–1329; Craig W. Dallon, “Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets It Right,” 50 Saint Louis University Law Journal (2005–2006), 307–359; Paul Bender, “Copyright and the First Amendment after Eldred v. Ashcroft,” 30 Columbia Journal of Law & the Arts (2007), 349–354; David E. Shipley, “Congressional Authority over Intellectual Property Policy after Eldred v. Ashcroft: Deference, Empty Limitations, and Risks to the Public Domain,” 70.4 Albany Law Review (2007), 1255–1295; David S. Olson, “First Amendment Interests and Copyright Accommodations,” 50 Boston College Law Review (2009), 1393–1423. 40 See, eg, Wendy Seltzer, “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment,” 24 Harvard Journal of Law & Technology, (2010) 171–232; Jennifer M. Urban and Laura Quilter, “Efficient Process

62 The Origin of Copyright

41 42

43 44 45

46 47

48 49 50 51 52 53

54 55 56 57 58 59 60 61 62

or ‘Chilling Effects’? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act,” 22 Santa Clara Computer & High Technology Law Journal (2006), 621–694. See for example BBC News, “Email and web use ‘to be monitored’ under new laws,” 1 April 2012. Available at: www.bbc.co.uk/news/uk-politics-17576745 (accessed 22 December 2020). See, for example, David Meyer, The Guardian, “Act on ACTA now if you care about democracy and Free Speech,” 3 February 2012. Available at www.guardian.co.uk/ commentisfree/2012/feb/03/act-acta-democracy-free-speech (accessed 22 December 2020). Art. 27.2, ACTA Agreement. David Meyer, The Guardian, “Act on ACTA now if you care about democracy and Free Speech.” See, eg, Michael Geist, “ACTA’s State of Play: Looking Beyond Transparency,” 26 American University International Law Review (2011), 543–558; Annemarie Bridy, “ACTA and the Specter of Graduated Response,” 26 American University International Law Review (2011), 559–578; Alberto J. Cerda Silva, “Enforcing Intellectual Property Rights by Diminishing Privacy: How the Anti-Counterfeiting Trade Agreement Jeopardizes the Right to Privacy,” 26 American University International Law Review (2011), 601–643; Peter K. Yu, “Six Secret (and Now Open) Fears of ACTA,” 64 SMU Law Review (2011), 975–1094. Yu, “Six Secret (and Now Open) Fears of ACTA,” 1050. Hong Kong acceded to the Berne Convention in 1973 as British Colony. Upon the handover of the sovereignty to China on 1 July 1997, Hong Kong continues to be the member of the Berne Convention as a Special Administrative Region of China. In 1995, Hong Kong joined the WTO as a founding member in the capacity of an independent customs territory under Arts 116 and 151 of the Hong Kong Basic Law. Preamble, TRIPS Agreement. China – Intellectual Property Rights, WTO Panel Report, WT/DS362/R (26 January 2009), para 7.247. China – Intellectual Property Rights, para 7.247. Art. 7, TRIPS Agreement. Art. 8, TRIPS Agreement. China also cited the interpretation of the Art. 17 from the WIPO Guide to the Berne Convention, which states that “[Article 17] covers the right of governments to take the necessary steps to maintain public order”, and “[a]uthors may exercise their rights only if that exercise does not conflict with public order.” The Panel agreed with WIPO’s interpretation. See, China – Intellectual Property Rights, paras 7.131, 7.132. Art. 17 of the Berne Convention (1971), incorporated into TRIPS by Art. 9.1 of the TRIPS Agreement. China – Intellectual Property Rights, para 7.135. See discussion supra 1.3.1 for more details. Peter Drahos, A Philosophy of Intellectual Property (Dartmouth Publishing, 1996); Justin Hughes, “The Philosophy of Intellectual Property,” 77 Georgetown Law Journal (1988–89), 287–366. John Locke, The Second Treatise of Government (New Jersey: Prentice-Hall, 1997), §§ 25 and 27. G. W. G. Hegel, The Philosophy of Right, T. M. Knox trans. (Oxford: Oxford University Press, 1967), §§ 41, 45 and addition to § 50. Jeremy Bentham, Theory of Legislation (London: Adamant Media Co., 2005), 113. F. A. Hayek, The Fatal Conceit: The Errors of Socialism (London: Routledge, 1988), 30–31. Jack Donnelly, Universal Human Rights in Theory and Practice (NY: Cornell University Press, 2nd edn, 2003), 31.

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63 5th Amendment to the US Constitution. This is reiterated in the due process clause in Amendment XIV to the US Constitution that states: “… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 64 Bryan A. Garner, Black’s Law Dictionary (St Paul, MN: Thomson West, 9th ed., 2009). 65 Garner, Black’s Law Dictionary. 66 Art. 17, UN Universal Declaration of Human Rights. 67 Wenwei Guan, “The Poverty of Intellectual Property Philosophy,” 38(2) Hong Kong Law Journal (2008), 367–369. 68 EC—Trademarks and Geographical Indications, WTO Panel Report, WT/DS174/R (15 Mar 2005). 69 EC—Trademarks and Geographical Indications, para 7.210. Emphasis added. 70 Lyman R. Patterson, Copyright in Historical Perspective (Vanderbilt University Press, 1968), 114–142. 71 Keith Aoki, “(Intellectual) Property and Sovereignty: Notes toward a Cultural Geography of Authorship,” 48(5) Stanford Law Review (1996), 1328. See also, Foucault, “What Is an Author?”, in Paul Rabinow ed., The Foucault Reader (NY: Pantheon Books, 1984), 108–109. In that section, Foucault touches on the historical facts in the late eighteenth to early nineteenth century about how ownership benefits come to compensate the danger of free speech’s challenge to sovereign oppression during the development of the modern authorship. 72 Rosemary J. Coombe, “The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy,” 6 Canadian Journal of Law & Jurisprudence (1993), 251–252. 73 Eldred v. Ashcroft, 537 US 186, 219 (2003). Emphasis original. 74 US Copyrights Act (17 USC 102(b)) for example states that copyright protection for a work does not extend to “any idea, … or discovery regardless of the form in which it is described, explained, illustrated, or embodies in such work.” See also, Harper & Row v. Nation Enterprises, 471 US 539, 556 (1985); Feist Publications v. Rural Tel. Service Co., 499 US 340, 344 (1991).See also discussion supra 1.2.2 for more details. 75 The New York Times Co v. United States, 403 US 713, 726 (1971), footnote of Justice J. Brennan’s concurring opinion, emphasis added. This was reiterated by the US Supreme Court in Harper & Row v. Nation Enterprises, 471 US 539, 581 (1985). 76 Estate of Hemingway v. Random House, 23 NY 2d 341, 348, 244 NE 2d 250, 255 (1968), emphasis added. This statement is reiterated by the US Supreme Court in Harper & Row v. Nation Enterprises, 471 US 539, 559 (1985). 77 In San Francisco Arts & Athletics v. U.S.O.C. (483 US 522, 532–535 (1987)), when facing the tension between property rights—trademarks in this case—and freedom of expression, the US Supreme Court suggested that public access or use of a word like “Olympic’—an issue of freedom of expression—must be balanced against a limited “property right” attained by an entity for a word when the word acquires value as the result of that entity’s labour, skill and expenditure. Property rights thus set limit on freedom of speech. 78 Art. 19(3), 1966 International Covenant on Civil and Political Rights. 79 Golan v. Holder, 132 S Ct 873, 889 (2012). 80 Harper & Row v. Nation Enterprises, 471 US 539, 558 (1985). 81 Harper & Row v. Nation Enterprises, 471 US 539, 560 (1985). 82 Donnelly, Universal Human Rights in Theory and Practice, 30. 83 For example, Art. 25.1 of the UN Universal Declaration of Human Rights states that: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

64 The Origin of Copyright 84 For so-called generations of human rights, see Cees Flinterman, “Three Generations of Human Rights”, in Jan Berting et al (eds), Human Rights in a Pluralist World: Individuals and Collectives (Westport, CT.: Meckler, 1990), 75–82. 85 1st Amendment, US Constitution. 86 Art. 5, UN Universal Declaration of Human Rights. 87 See, Mark A. Lemley and Eugene Volokh, “Freedom of Speech and Injunctions in Intellectual Property Cases,” 48(2) Duke Law Journal (1998–1999), 166–167. 88 Harper & Row v. Nation Enterprises, 471 US 539, 555–560 (1985). 89 See, eg, the International Federation of the Phonographic Industry (IFPI), “IFPI Comments on Hong Kong Copyright (Amendment) Bill 2011”, July 2011. Available LegCo, Hong Kong at: www.legco.gov.hk/yr10-11/english/bc/bc10/papers/ bc100723cb1-2780-2-e.pdf (accessed 22 December 2020). 90 Annemarie Bridy, “Is Online Copyright Enforcement Scalable?” 13 Vanderbilt Journal of Entertainment and Technology Law (2011), 727. See also, Danielle Serbin, “The Graduated Response: Digital Guillotine or a reasonable Plan for Combating Online Piracy?” 3.3 Intellectual Property Brief (2012), 42–52. 91 In France, for example, the French Parliament passed the Creation and Internet Law—commonly called the “graduated response” law—in May 2009, under which the administrative body “Hadopi” is vested the power to issue warning notices to suspected users and to suspend repeat infringers’ internet access for up to one year. The Law triggered huge debate. See, eg, Trisha Meer and Leo Van Audenhove, “Surveillance and Regulating Code: An Analysis of Graduated Response in France,” 9.4 Surveillance & Society (2012), 365–377. See also, Peter K. Yu, “The Graduated Response,” 62 Florida Law Review (2010), 1401–1402. Peter Yu discusses the negative impact of the system on freedom of speech. 92 CEDB Hong Kong, the 2009 Final Report, para 13. 93 CEDB Hong Kong, the 2008 Preliminary Proposals, para 11. 94 CEDB Hong Kong, the 2009 Final Report, Annex B: “Summary of Views Received.” 95 An initiator of this sort of activities, whose active acts make unauthorized communications to the public, could be penalized under the current Copyright Ordinance already, as in the Chan Nai Ming Case. 96 The 2008 Preliminary Proposals, Annex A: “Summary of Views Received.” 97 Ibid. 98 Ibid. 99 CEDB Hong Kong, the 2008 Preliminary Proposals, paras 17, 21; the 2009 Final Report, paras 9–13. 100 Sections 88A to 88I, Division IIIA (newly added), Copyright (Amendment) Bill 2011. 101 s 88I, Copyright (Amendment) Bill 2011. See also, the 2009 Final Report, paras 9–13. 102 ss 88B(3) and 88H, Copyright (Amendment) Bill 2011. 103 The Bill (s. 88I(4)) states clearly that “[a]ny code of practice … is not subsidiary legislation.” 104 See discussion supra 2.2.1 for more details.

Bibliography General Aoki, Keith. “(Intellectual) Property and Sovereignty: Notes toward a Cultural Geography of Authorship,” 48(5) Stanford Law Review (1996), 1293–1355. Bender, Paul. “Copyright and the First Amendment after Eldred v. Ashcroft,” 30 Columbia Journal of Law & the Arts (2007), 349–354.

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Bentham, Jeremy. Theory of Legislation (London: Adamant Media Co., 2005, Elibron Classics Replica of 1896 edition by Kegan Paul, Trench, Trübner & Co., Ltd., London). Birnhack, Michael D.“Copyright Law and Free Speech after Eldred v. Ashcroft,” 76 Southern California Law Review (2003), 1275–1329. Bonadio, Enrico and Mauro Santo. “ISPs Cannot be Ordered to Adopt General and Preventive Filtering Systems,” 7(4) Journal of Intellectual Property Law & Practice (2012), 234–236. Bridy, Annemarie. “ACTA and the Specter of Graduated Response,”26 American University International Law Review (2011), 559–578. Bridy, Annemarie. “Is Online Copyright Enforcement Scalable?”13 Vanderbilt Journal of Entertainment and Technology Law, (2011), 695–737. CEDB Hong Kong. “Preliminary Proposals for Strengthening Copyright Protection in the Digital Environment” (2008). CEDB Hong Kong. “Proposals for Strengthening Copyright Protection in the Digital Environment” (2009). Coombe, Rosemary J.“The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy,”6 Canadian Journal of Law & Jurisprudence (1993), 251–252. Dallon, Craig W.“Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets It Right,” 50 Saint Louis University Law Journal (2006), 307–359. Denicola, Robert C.“Copyright and Free Speech: Constitutional Limitations on the Protection of Expression,” 67 California Law Review (1979), 283–316. Donnelly, Jack. Universal Human Rights in Theory and Practice (New York, NY: Cornell University Press, 2nd ed., 2003). Drahos, Peter. A Philosophy of Intellectual Property (Brookfield, VT: Dartmouth Publishing Company, 1996). Flinterman, Cees. “Three Generations of Human Rights,” in Jan Berting et al. (eds), Human Rights in a Pluralist World: Individuals and Collectives (Westport, CT: Meckler, 1990), 75–82. Foucault, Michel. “What is an Author?” in Paul Rabinow, ed., The Foucault Reader (New York, NY: Pantheon Books, 1984), 101–120. Garner, Bryan A. Black’s Law Dictionary (St Paul, MN: Thomson West, 9th ed., 2009). Geist, Michael. “ACTA’s State of Play: Looking Beyond Transparency,”26 American University International Law Review (2011), 543–558. Goldstein, Paul. “Copyright and the First amendment,”70 Columbia Law Review (1970), 983–1057. Greenleaf, Graham. “IP, Phone Home: Privacy as Part of Copyright’s Digital Commons in Hong Kong and Australian Law”, in Lawrence Lessig ed., Hochelaga Lectures 2002: the Innovation Commons (Hong Kong: Sweet & Maxwell Asia, 2003), 12–67. Guan, Wenwei. “The Poverty of Intellectual Property Philosophy,” 38(2) Hong Kong Law Journal (2008), 359–397. Hayek, Friedrich August. The Fatal Conceit: The Errors of Socialism (London: Routledge, 1988). Hegel, G. W. G. The Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967). Hughes, Justin. “The Philosophy of Intellectual Property,” 77 Georgetown Law Journal (1988–89), 287–366. International Federation of the Phonographic Industry. “IFPI Comments on Hong Kong Copyright (Amendment) Bill 2011” (July 2011).

66 The Origin of Copyright Lemley, Mark A and Eugene Volokh, “Freedom of Speech and Injunctions in Intellectual Property Cases,” 48(2) Duke Law Journal (1998), 147–242. Locke, John. The Second Treatise of Government (New Jersey, NJ: Prentice-Hall, 1997[1690]). Meer, Trisha and Leo Van Audenhove. “Surveillance and Regulating Code: An Analysis of Graduated Response in France,” 9(4) Surveillance & Society (2012), 365–377. Netanel, Neil Weinstock. Copyright’s Paradox (New York, NY: Oxford University Press, 2008). Nimmer, David. “A Riff on Fair Use in the Digital Millennium Copyright Act,” 148(3) University of Pennsylvania Law Review (2000), 673–742. Nimmer, Melville B.“Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?” 17 UCLA Law Review (1970), 1180–1204. Olson, David S.“First Amendment Interests and Copyright Accommodations,” 50 Boston College Law Review (2009), 1393–1423. Patterson, Lyman R. Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968). Pendleton, Michael D. and Alice Lee. Intellectual Property: A Guide to the Law in Hong Kong (with reference to the development in China) (Hong Kong: Butterworths Asia, 2001). Pun, K. H.“Reform of Copyright Law in Hong Kong: Time to Redraw the Balance,” 32 (1) Hong Kong Law Journal, (2002), 83–102. Samuelson, Pamela. “The Constitutional Law of Intellectual Property afterJournal of Copyright Society U.S.A. (2002–2003), 547–579. Seltzer, Wendy. “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment,” 24 Harvard Journal of Law & Technology (2010), 171–232. Serbin, Danielle. “The Graduated Response: Digital Guillotine or a reasonable Plan for Combating Online Piracy?” 3(3) Intellectual Property Brief (2012), 42–52. Shipley, David E.“Congressional Authority over Intellectual Property Policy after Eldred v. Ashcroft: Deference, Empty Limitations, and Risks to the Public Domain,” 70.4 Albany Law Review (2007), 1255–1295. Silva, Alberto J. Cerda. “Enforcing Intellectual Property Rights by Diminishing Privacy: How the Anti-Counterfeiting Trade Agreement Jeopardizes the Right to Privacy,” 26 American University International Law Review (2011), 601–643. Urban, Jennifer M. and Laura Quilter. “Efficient Process or ‘Chilling Effects’? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act,” 22 Santa Clara Computer & High Technology Law Journal, (2006), 621–694. Wan, Charn Wing. “The Challenge of the Criminalization of Online Piracy in Hong Kong,” 3(10) Journal of Intellectual Property Law & Practice (2008), 666–672. Wong, Yiu-chung, “‘Super Paradox’ or ‘Leninist Integration’: The Politics of Legislating Article 23 of Hong Kong’s Basic Law,” 30(2) Asian Perspective (2006), 65–95. Yu, Peter K.“The Graduated Response,” 62 Florida Law Review (2010), 1373–1430. Yu, Peter K.“Six Secret (and Now Open) Fears of ACTA,” 64 SMU Law Review (2011) 975–1094.

Cases Chan Nai Ming v. HKSAR, [2007] 2 HKLRD 489, [2007] 3 HKC 255, CFA China – Intellectual Property Rights, WTO Panel Report, WT/DS362/R (26 January 2009)

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EC – Trademarks and Geographical Indications, WTO Panel Report, WT/DS174/R (15 March 2005) Eldred v. Ashcroft, 537 US 186 (2003) Estate of Hemingway v. Random House, 23 NY 2d 341, 244 NE 2d 250 (1968) Feist Publications v. Rural Tel. Service Co., 499 US 340 (1991) Golan v. Holder, 565 US 302, 132 S. Ct. 873 (2012) Harper & Row v. Nation Enterprises, 471 US 539 (1985) New York Times Co v. United States, 403 US 713 (1971) San Francisco Arts & Athletics v. U.S.O.C., 483 US 522 (1987) Scarlet Extended SA v. SABAM, C-70/10, ECJ (24 November 2011)

3

Copyright Ontological Trilogy II Secondary Creation and Fair Dealing’s Ontological Author Dynamics1

As the second part of the copyright ontological trilogy, this chapter takes up the usergenerated content (UGC) exception issue aiming at a copyright ontological critique of the authorship dynamics. It is true that, in relation to either parody or UGC exception, copyright and free speech share an ontological interdependence in defending individual autonomy against government intrusion. Although parody exception specifies an ontological balance between authorship and readership of the existing work, UGC exception reveals an ontological dynamic between the author of the existing work and the future author of the secondary creation. Extending the author’s exclusive derivative right to a digital network environment while limiting exception to works for parody purposes only yet not any other UGC creation, copyright protection continues to be the end rather than beginning of creation in the digital environment. Setting parody and UGC against each other in the context of free speech unfortunately undermines the ontological interdependence between author, reader, and future creator in a “participative web.” An onto-epistemologically balanced copyright perspective would suggest that the success of copyright reform for the digital age depends on a careful revisiting of the fair dealing doctrine and accommodating new authorship-readership dynamics in the digital age.

3.1 Introduction As the chapters above indicated, after going modern at the birth of the Statute of Anne and going global between the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), contemporary copyright started going digital upon the signing of the World Intellectual Property Organization (WIPO)’s Internet Treaties and entering into a new era of uncertainty. By reference to the discussion about the USA and the European Union (EU), Chapter 2’ examines the tension between copyright and free speech in copyright reform through a case study of Hong Kong’s failed copyright amendment in the 2011 Bill. The critical examination suggested that author and user share an ontological interdependence in tension between copyright vs free speech in defending individual autonomy against public authority yet unfortunately complicated by political controversies. The case study of the copyright-free speech tension in copyright digital reform as seen in Hong Kong’s early failed attempt shows the complexity of copyright ontology implicated in political contrivances across DOI: 10.4324/9781003163282-3

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various jurisdictions. Building on the critical examination in the previous chapters, this chapter takes up the UGC issue in Hong Kong’s copyright amendment as a second case study to explore copyright ontological complexity between authors and future authors of possible secondary creation. Caught in the crossfire between the pan-democratic members of Hong Kong’s local legislature, the Legislative Council (LegCo), and netizens from the public, the “notorious” Copyright (Amendment) Bill 2011 (the 2011 Bill), commonly known as Hong Kong’s “Cyberspace Article 23”, came to an end upon the expiry of the then LegCo’s term in July 2012.2 The tranquillity did not last very long, and the public’s concerns as to the copyright regime’s impact on free speech reignited when the Hong Kong Government started a new round of consultation in 2013.3 Views gathered through the 2013 parody consultation were quite polarized. On the one hand, there was “a significant and voluminous view from [copyright] users that champions complete freedom of expression and ‘secondary creations,’ with some going to the extreme of calling for a total withdrawal of the exercise as they view the proposed options as restricting civil liberties.”4 On the other hand, many copyright owners saw “no need to specifically provide an exception for ‘true’ parody” and raised a “strong opinion that underlines the importance of a robust copyright protection regime that would incentivise creativity and advance our [Hong Kong] economic interest, [and] the need for an update of the copyright regime in the digital environment without further delay.”5 In the Copyright (Amendment) Bill 2014 (the 2014 Bill) introduced to the LegCo in June 2014, a new fair dealing exception that covers work for the purpose of “parody, satire, caricature or pastiche” was introduced to calm the free speech sentiment.6 However, the 2014 Bill did not end the controversies of the tension between copyright protection and free speech. Rather, the 2014 Bill reintroduced the antagonism to a new forum of the debate between copyright protection in the digital age and the freedom of secondary creation, in particular the introduction of a UGC copyright exception into the copyright regime. Similar to the public enthusiasm towards parody in debates surrounding the 2011 Bill previously, the public strongly advocates for a UGC copyright exception. While netizens strongly support the introduction of a copyright exception “to exclude non-profit making UGC or UGC not disseminated in the course of trade from both civil and criminal liabilities for copyright infringement,” copyright owners firmly reject this idea.7 However, the 2014 Bill finally dismissed the UGC proposal, as it was considered untested and potentially immature in general.8 The government’s failure to consider the introduction of the UGC exception, however, attracted fierce criticism from the general public.9 The Neo Democrats, for example, argued that adopting a parody exception only would not cover all the secondary creations, and the 2014 Bill was forcing secondary creators to write only through parody and satire, thus downgrading secondary creators to clowns.10 The tension between copyright protection and free speech surrounding parody issues thus carried on into the 2014 Bill in the form of the UGC debates. The 2014 Bill is once again caught, this time between parody and UGC, in the debate around copyright’s implications for free speech between current and secondary authors instead of author-user copyright ontological complexity previously.

70 The Origin of Copyright By reference to the parody controversies in the 2011 Bill, this chapter offers a critical examination of the 2014 Bill’s refusal of UGC copyright exception and its copyright ontological implications. In the next section, the chapter offers a brief account of the process of how the parody exception has been incorporated into the 2014 Bill and the reasons for the Government’s dismissal of the UGC exception in the Bill. The chapter suggests that the UGC issue repeats the free speech rhetoric yet with a new focus in which copyright users are not only users, but also creators in the digital network environment, which brings the tension between copyright owners and users to a whole new level, showing a different perspective of copyright ontological complexity. In section 3.3, the chapter examines further the tension between copyright protection and free speech in the context of both the 2011 Bill and 2014 Bill and the new development of fair dealing jurisprudence in the 2014 Bill. The chapter suggests that the 2014 Bill’s application of the three-step test against UGC exception is ill-founded. Moreover, while a copyright user’s “dealing” in all fair dealing exceptions currently is to “use” without “creating,” parody or UGC exception accommodates a user being at the same time a creator as is often seen in the “Web 2.0” era. Introducing parody yet not UGC exception not only indicates the 2014 Bill’s theoretical confusion in fair dealing jurisprudence, but also shows the Bill’s inability to respond to the new developments in the “Web 2.0” age. Further analysis shows that extending exclusive author derivative rights to the digital environment and the traditional low originality standard together present the real obstacle to accommodate the UGC exception. The chapter concludes in section 3.5 with a call for an ontologically balanced holistic revisiting of both parody and UGC exceptions in copyright reform for the digital age.

3.2 Authorship Interests Caught between Parody and UGC Exceptions 3.2.1 Establishing the Parody Exception under the Free Speech Rhetoric Concerns regarding copyright protection’s negative impacts on free speech dominated both the 2011 Bill and the 2014 Bill in Hong Kong’s copyright reform for the digital age. The original purpose of the wave of copyright amendments, however, was not free speech oriented, rather to better protect copyrights in the digital age as part of the global effort started from the US DMCA 1998’s implementation of the two 1996 treaties of the WIPO.11 As the 2006 consultation paper sets out, the review since 2006 was to meet challenges from the “advances in technology and the development of broadband infrastructure” and to explore issues relating to “whether and if so how our copyright protection regime should be enhanced to provide for effective protection in the digital environment.”12 Building on the 2006 consultation, the Government proposed a set of Preliminary Proposals for further public consultation in 2008,13 which led to the 2009 “Proposals for Strengthening Copyright Protection in the Digital Environment.”14 The proposal suggests recognizing copyright owners’ exclusive “right of communication” in any mode of electronic transmission that makes their works available to public with criminal sanctions against those who engage in

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“unauthorised communication of copyright works.” The Copyright (Amendment) Bill 2011 was finally introduced to local legislature, the LegCo in June 2011.16 The exclusive right of communication was taken as a significant threat against parody, and public sentiment supported introducing a parody exception into the 2011 Bill. However, the Government considered that introducing a parody exception “would potentially be controversial, as it is liable to change significantly the existing balance of interests between the right holders and the users under the Copyright Ordinance,” thus was “neither prudent nor responsible” without prior public consultation.17 However, the Government also committed “to be receptive to the views expressed by the copyright owners and the users, and would continue to monitor the latest international developments before deciding whether a concrete legislative proposal on copyright exception for parody ought to be made.”18 Pan-democrat members of the LegCo strongly opposed the 2011 Bill. Some LegCo members shared copyright users’ view that “parodies not involving large scale copyright piracy and profit-making should be exempted from the criminal liability, so as to protect the freedom of expression.”19 One LegCo member also suggested that the Government “should consider granting such an exemption to parodies making use of Government publicity and promotion materials.”20 During the legislative debates, the public had expressed strong sentiment against the 2011 Bill for the fear of its negative effects on free speech, with the Bill termed “Cyberspace Article 23” and subject to fierce attack.21 The 2011 Bill did not go further into a second reading and came to an end upon the expiry of the then LegCo’s session in July 2012. When the review of the copyright regime for the digital era was revived in 2013, the previously unsettled parody exception issue became the key issue of contention. Between July and November 2013 the Hong Kong Government held a new round of public consultation on parody treatment aiming at consensus building on the subject of parody to “map out the way forward for the package of legislative amendments already scrutinised and supported by the LegCo Bills Committee.”22 Building on the parody consultation, new copyright exceptions and further clarification of criminal liability in relation to copyright infringement were added onto the 2011 Bill which finally led to the Copyright (Amendment) Bill 2014.23 The parody copyright exception was introduced into the 2014 Bill as part of the newly expanded fair dealing exceptions in addition to the “use for the purpose of commenting on current events,” and the “use of a quotation, the extent of which is no more than is required by the specific purpose for which it is used.”24 The 2014 Bill introduced the parody exception, adding s 39A before the s 40 of the Copyright Ordinance: 15

“39A. Parody, satire, caricature and pastiche (1) Fair dealing with a work for the purpose of parody, satire, caricature or pastiche does not infringe any copyright in the work.

72 The Origin of Copyright (2) In determining whether any dealing with a work is fair dealing under subsection (1), the court must take into account all the circumstances of the case and, in particular— (a) the purpose and nature of the dealing, including whether the dealing is for a non-profit-making purpose and whether the dealing is of a commercial nature; (b) the nature of the work; (c) the amount and substantiality of the portion dealt with in relation to the work as a whole; and (d) the effect of the dealing on the potential market for or value of the work.”25 In explaining the reasons for adopting the parody exception, the Hong Kong Government recognized that parodies “are common means” of the public’s expression, and could “promote freedom of expression” and “encourage creativity.”26 The Government also emphasizes that parody’s scope is “clear and confined” and parody works “are commonly critical or transformative in nature, and should [be] unlikely [to] compete with or substitute the original works.”27 From the 2011 Bill to the 2014 Bill, the parody copyright exception was finally incorporated into the copyright amendment for the purpose of balancing copyright protection with freedom of speech. 3.2.2 Swinging Between the Parody and UGC Exceptions During the Hong Kong Government’s 2013 public consultation on parody treatment, many of its supporters advocated introducing a secondary creation copyright exception. Secondary creation advocates emphasized that “different forms of secondary creation had long existed and had been recognised as art forms throughout the [sic] history, such as poetry and appropriation art” and by targeting a different market, transformative secondary creation did not replace the original work and thus should be exempted from civil and criminal liabilities, even if the uses were commercial.28 In addition to recognizing secondary creation’s political roles, some advocates “considered works of secondary creation as products of creativity and a part of local culture,” and rarely caused any actual loss.29 Although many respondents raised the issue of secondary creation, the Hong Kong Government refused to take on the term “secondary creation” and instead used the term “parody” for the consultation exercise, for the reason that the term “parody” is fairly clear while “secondary creation” is not. According to the Government, “parody” as a collective term refers to works of parody, satire, caricature, or pastiche “which include an element of imitation or incorporate certain elements of an underlying copyright work for the purposes of creating comic or critical effects.”30 However, “secondary creation” as a term is not commonly used in copyright jurisprudence and is difficult to define.31 The Government suggested that the “original elements” in secondary creation should not be “the sole basis in

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considering any copyright exception” and “[t]he provision of a copyright exception solely based on the rather ambiguous concept of ‘secondary creation’ could blur the line between infringing and non-infringing works, create uncertainty, and increase opportunities for abuse.”32 Therefore, the Hong Kong Government indicated a clear “reservation in adopting a generic concept of UGC as a subject matter for copyright exception” in this round of review. The reasons for Government’s refusal of the UGC exception were threefold: (1) the concept is “vague and undefined,” and thus UGC exception might not meet TRIPS’ three-step test, the first step of which is confining the exception to a certain special case in particular; (2) as going beyond the newly expanded fair dealing exceptions, UGC exception is hard to justify; and (3) the UGC concept is “unsettled and developing,” and only Canada has adopted it in a copyright act.33 However, the Government also committed itself to “continue to monitor closely overseas developments in copyright protection as part of our consideration in identifying and resolving further issues for any future legislative update.”34 It should be emphasized here that the UGC copyright exception issue is neither new nor localized to Hong Kong. An OECD report developed in 2006 paid particular attention to the issue by recognizing the significance of a “participative web” that “is based on an Internet increasingly influenced by intelligent web services that empower the user to contribute to developing, rating, collaborating on and distributing Internet content, and customising Internet applications.”35 The OECD defined UGC – UCC in OECD’s term – as: “(i) content made publicly available over the Internet, (ii) which reflects a certain amount of creative effort, and (iii) which is created outside of professional routines and practices.”36 The OECD recognized that “how to preserve the freedom of expression made possible” by the UGC is one of the issues that the UGC raised that relates to intellectual property rights, and “a balance must be struck between freedom of expression and other behaviours eg the posting of illegal or unauthorised copyrighted content.”37 A well-noted US case raising a similar issue provides a good example of the social sentiment regarding the tension between copyright and free speech. In this case, a user uploaded a home video in which a copyrighted song was playing in the background. When the video was taken down, the user raised a fair use defence and free expression claim and partly won the case, which allowed her to host the video again.38 The UGC issue was taken up in the USA by the Department of Commerce’s Green Paper in relation to the issue of remix, which stated that a balance of interests is warranted “foster[ing] an online environment that promotes the promises and benefits of UGC Services and protects the rights of Copyright Owners.”39 It should be noted that, as far as legislative adoption is concerned, the UGC exception has been accepted in Canada, when the Canadian Copyright Modernization Act expanded its fair dealing exceptions to cover fair dealing for parody or satire. According to the Canadian Modernization Act, if conditions are met, non-commercial UGC: … is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or

74 The Origin of Copyright other subject-matter in which copyright subsists and for the individual—or, with the individual’s authorization, a member of their household—to use the new work or other subject-matter or to authorize an intermediary to disseminate it.40 It should also be emphasized that, although parody and UGC share with each other on the reliance or the existing copyrighted work, they are ontologically different from each other. While parody is an act of pure use which reveals an ontological tension between the author and user of an existing work, UGC is an act of use for secondary creation that denotes an ontological tension between the existing author and the future author who uses the existing work for a new creation. Intentionally or unintentionally, Canada’s UGC exception amendment captures the different copyright ontological implications between parody and UGC. Swinging between parody exception and UGC exception, Hong Kong’s 2014 Bill adopted the parody exception, yet dismissed the UGC exception proposal. Concerns about negative impacts on free speech were the key issue in considering both parody and UGC exceptions, yet the results were opposite. This brings us to some interesting questions, such as the tension between copyright protection and free speech, the 2014 Bill’s differentiated treatments to parody and UGC works, and the success and failure of the 2014 Bill’s implications regarding the ontological complexity of copyright.

3.3 Authorship Ontology and [Fair] Dealing in the Digital Environment 3.3.1 Free Speech vs Copyright in a New Context From the 2011 Bill to the 2014 Bill, free speech concern has always been the central issue of the copyright amendment. While free speech rhetoric successfully brought parody exception from the “outskirts” to the “urban centre” by being accepted as one of the 2014 Bill’s expanded fair dealing exceptions, the UGC exception is not as lucky as parody, and had never been introduced into the Hong Kong’s copyright reform when the 2014 Bill came to an end when the then LegCo session expired in 2017. The failure of both 2011 and 2014 Bills indicated that the tension between copyright protection and free speech is deeply rooted in the minds of the public. As Chapter 2’s analysis of the ontological interdependence between copyright and free speech indicated, however, taking copyright protection as the natural enemy of free speech is ontologically flawed and somewhat misleading, if not deceptive. From a historical perspective, freedom of speech and copyright protection share the same origin, and they are essentially interdependent on one other. The modern patent regime and copyright regime, as commonly believed, originated respectively from the British Statute of Monopolies 1623 and the Statute of Anne 1710. The era of the latter statute prefigured the Industrial Revolution sweeping across Europe and then North America—a time of the rapid development in modern capitalism, and a time in which the social contract theory built government

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legitimacy on individual autonomy, and private property theory developed to protect individual autonomy.41 Both free speech and copyright protection for individual creators were a natural result of the development of individualism in that era. By accepting copyright registration and submitting themselves to a sovereign’s censorship, authors or copyright owners gained the freedom to express ideas and the right to prevent unauthorized copying of their works.42 It was within this general social context that the beginning of the concept of copyright ownership was developed, in fact arising from the process of the fight for free speech against censorship.43 Moreover, while copyright protects the forms of expression instead of ideas expressed, freedom of expression focuses on the ideas to be expressed instead of the free choice of the forms for expressing ideas.44 Copyright protection and free speech are therefore complementary to one another and together secure both forms and ideas of expression, which is thus true and complete freedom of expression.45 This has also been long established in judicial practice. In Ashdown v. Telegraph Group, for example, the English Court of Appeal suggested that “freedom of expression should not normally carry with it the right to make free use of another’s work.”46 The US Supreme Court too, from 1985 Harper & Row v. Nation Enterprises, to 2003 Eldred v. Ashcroft, to 2012 Golan v. Holder, repeatedly clarified the complementary rather than contradictory relationship between copyright and free speech.47 As the US Supreme Court stated in Eldred, for example: The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles. Indeed, copyright’s purpose is to promote the creation and publication of free expression. … In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations [including the idea and expression dichotomy and fair use].48 The Eldred case has generated much academic discussion as to the dynamics between copyright and free speech.49 Although academic opinions vary, there has not yet been any case establishing that copyright protection violates free speech. Recognizing “some restriction on expression is the inherent and intended effect of every grant of copyright,” the US Supreme Court in the 2012 Golan case once again stated that copyright is “an engine of free expression,” and that “[b]y establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”50 The fact that there is no case that established copyright’s violation against free speech is due to the fact that both copyright and free speech are negative rights essential for individual freedom against unwarranted government interference. Copyright is a property right. The Copyright Ordinance states clearly that “copyright is a property right” which subsists in various descriptions of work according to law.51 As property rights, copyrights—intellectual property rights in general too— are private rights. The TRIPS Agreement, for example, recognizes that “intellectual property rights are private rights.”52 It should be emphasized that private property

76 The Origin of Copyright bears fundamental significance to our social institutions. Bentham, for example, argued that “[p]roperty and law are born together, and die together.”53 Moreover, private property rights also serve as the foundation of individual freedom, as “freedom of individual decision is made possible” by delimiting individual rights of property.54 Private property is thus argued to be the precondition of the development of liberal, democratic social political institutions.55 Recognizing copyrights in particular or intellectual property rights in general, as property rights and private rights, “sets a limit to other third parties and even public authorities from illegitimate infringements.”56 Therefore, intellectual property rights in general or copyrights in particular are also negative rights. The WTO panel, for example, suggested that “the TRIPS Agreement does not generally provide for the grant of positive rights to exploit or use certain subject matter, but rather provides for the grant of negative rights to prevent certain acts.”57 Free speech too, as one of the fundamental human rights, is also a negative right. Without legitimate constitutional reason, governments should not limit or interfere with individuals’ freedom of speech and expression. This of course includes the right of individuals to freely express themselves in certain forms and to obtain copyright protection from unwarranted public interference. Instead of conflicting with each other, copyright and free speech share the same “enemy”: government’s unwarranted interference. In the Lenz case, Lenz considered that her freedom of expression through video had been restricted as the result of the takedown of her video and thus asked for nominal damages for the “chilling of her free speech rights.” The Court rejected the claim and stated: However, the cases upon which she relies raised challenges to government action. For example, Yniguez v. Arizonans for Official English … involved a suit by a state employee against the state. The plaintiff was awarded nominal damages. Lenz invites this Court to extend the reach of such cases to the conduct of private actors in the DMCA context. However, absent some authority supporting such an extension, the Court declines the invitation. Accordingly, the Court concludes that Lenz cannot demonstrate damages based upon the loss of YouTube’s hosting services and the chilling of her free speech.58 The Lenz case perfectly illustrates that the generally perceived conflict between copyright and free speech in the context of copyright amendment is somewhat misleading. Of course, this by no means argues that there is no conflict between copyright and free speech by nature. On the contrary, as pointed out by the US Supreme Court in the Golan case, every grant of copyright intends some inherent restriction on expression. Private rights can always be in conflict with one another. So, therefore, there exists tension between the copyright of one individual and the free expression of another. The limitation that one individual’s copyright puts on another’s free expression through the given copyright material should not be overstated beyond the normal conflict between private rights. One such

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overstatement is to call this tension a human rights violation against free speech. Copyright by nature is part of an individual’s private right of expression, by no means conflicting with the free speech that protects individuals’ expression of opinions. If there is ever any limitation or impairment of freedom of expression, that can come only from governments instead of private right owners.59 The UGC exception’s discussion in free speech context indeed confirms rather than challenges the ontological interdependence between copyright and free speech as analyzed in Chapter 2. 60 Therefore, copyright and free speech are complementary in general, as they have a shared ontological interdependence in defence of an individual’s autonomy against government intrusion. The free speech discussion has unfortunately confused the real ontological differences between parody and UGC. Even more than parody’s “use” denotes an author-user ontological dynamics, UGC’s use extends to an ontological dynamics between existing author and the future author of the secondary creation—an act restricted by copyright that is covered by the three-step test. 3.3.2 The Inconsistent Application of the Three-Step Test It is certainly not true to say that the Hong Kong Government did not capture that there is an ontological tension between the existing author of the copyright work and the future author of a secondary creation building on the existing work in a UGC exception. However, Hong Kong’s current inconsistent application of the three-step test eventually leads to the digital copyright reform caught between parody and UGC exceptions. The key reason why the Hong Kong Government rejected the UGC exception was its failure to meet the three-step test, particularly the first step’s requirement of limiting copyright exceptions to specific cases only. In the brief submitted to the LegCo, the Government pointed out that there is no widely accepted UGC definition at the international level, and the concept is vague, undefined, and evolving. The Government further suggested that the UGC exception might not meet “the three-step test enshrined in the TRIPS Agreement, in particular the first criterion ie any limitation or exception should be confined to a certain special case.”61 In relation to copyright users’ reference to the Canadian legislative recognition of a non-commercial UGC exception, the Government approvingly cited a WTO panel’s interpretation of the first-step requirement and suggested that the Canadian UGC exception might not be considered as “clearly defined,” and it is thus doubtful whether it is consistent with the first-step requirement. The Government’s analysis is three-fold: (1) “for non-commercial purpose” appears to be too vague; (2) scope is not narrow “given the large number of potential users”; and (3) “non-commercial purposes” might not qualify “an exceptional or distinctive objective” requirement.62 The Government therefore agreed with Dr Mihály Ficsor, WIPO’s former Assistant Director-General, that the Canadian UGC exception “does not meet the first step of the three-step test as it was not a ‘special case’,” and the creation of derivative works is an act restricted the exclusive right of adaptation under the Berne Convention.63

78 The Origin of Copyright The “three-step test” incorporated into Hong Kong’s Copyright Ordinance comes from the TRIPS Agreement. As for the limitation and exception to the copyright owner’s exclusive right, the TRIPS Agreement states that “[m]embers shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”64 TRIPS’ “three-step test” can be further traced back to the “possible exceptions” as to the right of reproduction under the Berne Convention.65 In order to comply with the “three-step test,” the Government is obliged to ensure that the exception (1) is confined to “special cases;” (2) does not conflict with a normal exploitation of the work; and (3) does not unreasonably prejudice the legitimate interests of the copyright owner. However, the Hong Kong Copyright Ordinance incorporated the “three-step test” in 1997 with a slight intentional or unintentional twist: [i]n determining whether an act specified in this Division may be done in relation to a copyright work notwithstanding the subsistence of copyright, the primary consideration is that the act does not conflict with a normal exploitation of the work by the copyright owner and does not unreasonably prejudice the legitimate interests of the copyright owner.66 It is quite obvious that the wording of the “three-step test” in Hong Kong’s Copyright Ordinance is somewhat different from that of the TRIPS Agreement, as it does not really contain the first-step requirement of “confining to special cases.” “Act[s] specified in this Division” would not amount to “special cases,” rather refer to “acts which may be done in relation to copyright works notwithstanding the subsistence of copyright.”67 In the context of Hong Kong’s Copyright Ordinance, this division—Part II, Division III, ss 37–88—defines statutory defence against copyright infringement. The statutory defence covers fair dealing of “research and private study” under s 38, “criticism, review and news reporting” under s 39, education use under ss 41–45, “incidental inclusion” under s 40, “libraries and archives” use under ss 46–53, “public administration” use under ss 54–59, and various other exceptions under ss 60–88. Of course, the Ordinance’s difference in wording is still not enough to overturn the presumption of the existence of the firststep test in Hong Kong. Yet to give meaning to all provisions, this difference in wording must suggest something meaningful. The absence of any further case law regarding the first-step test application in Hong Kong certainly casts doubts as to the first-step requirement’s application in Hong Kong’s copyright regime. Is this doubt about the application of the first-step requirement merited? On the one hand, practice as to the first-step test varies from country to country. In the context of the WTO, a WTO panel offered some clarification as to “certain special cases.”68 According to the WTO panel, “certain special cases” refer to occurrences or circumstances within a “narrow scope” with an “exceptional or distinctive objective,” in which “the scope of the exception is known and particularised” to guarantee a “sufficient degree of legal certainty.”69 It is worth mentioning here that the “three-step test” has never been formally implemented into the UK’s

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Copyright, Designs and Patents Act 1988 (CPDA). However, the test was incorporated into the EU’s Information Society Directive in 2001.70 The Directive provides optional copyright exceptions and limitations and at the same time stipulates that these exceptions and limitations would be subject to the three-step test.71 In Infopaq, the application by the European Court of Justice (ECJ) of the three-step test provided an interesting interpretation of the test.72 In Infopaq, the ECJ gave an affirmative answer to the question whether “the scanning by a commercial business of entire newspaper articles and the subsequent processing of the reproduction” can be regarded as satisfying the three-step test under Art. 5(5) of the Information Society Directive, if Art. 5(1)’s requirements were met.73 The assessment of an exception meeting the three-step test was referred to other factors like whether it had “independent economic significance.” Under the framework of European law, the EU’s Directive and the ECJ’s jurisprudence certainly carry significant interpretative influence over the UK’s copyright regime. The brief comparison above between the WTO, British, and ECJ perspectives indicates that there is no consistent jurisprudence as to the first-step requirement of the three-step test. Thus, the 2014 Bill’s dismissal of the UGC exception on the grounds of the “three-step test” is rather tenuous. On the other hand, the Government’s 2014 Bill legislative brief is rather vague as to how parody exception satisfies the three-step test, in particular the first-step requirement of “confining to special cases.” The Government recognized that “transformative use” and “common Internet behaviour” are relevant considerations, yet not sufficient justification for establishing an exception. However, the Government also confirmed that “[t]ransformative use in itself is a wide concept and may be unfair to the original author or copyright owner,” and being a “common and prevalent” internet behaviour itself cannot “be a justification for exception, and online activities are not necessarily private.”74 The Government recognized the importance of following “the three-step test as the overarching yardstick at the international treaty level” to balance different interests. To satisfy the first-step requirement, the Government confines parody exceptions “to certain special cases, by crafting them within a narrow and clearly defined scope and justified by some exceptional or distinctive objectives,” ie for “the purposes of parody, satire, caricature and pastiche.”75 As the ends—parody, satire, caricature, and pastiche—thus justify the means, the Government obviously got over the firststep hurdle for parody exception with ease. However, the Government also recognized that not all activities within this “narrow and clearly defined scope” are necessarily justified exceptions, rather that the safeguards of the remaining two steps and a fairness assessment by the court are also needed.76 There is abundant international intellectual property scholarship on the issue, and it is generally recognized that the three steps should be considered sequentially and that “the test constitutes a single analytical whole and serves the ultimate goal to strike an appropriate balance.”77 The jurisprudence or practice of the three-step test in Hong Kong, however, is far from consistent as “a single analytical whole.” In fact, by confining parody works to a certain purpose plus limiting them with a fairness assessment according to fair dealing factors, the Government’s parody

80 The Origin of Copyright justification is no different from that of the Canadian Copyright Modernization Act’s treatment of the UGC exception. The Hong Kong Government indeed overlooked the ontological difference between parody and UGC, in which parody denotes ontological tension between author and user while UGC confronted with an ontological tension between an existing author vs a future author of secondary creation. Otherwise, the EU’s “independent economic significance” test will probably come into play and be applied both to parody and UGC. By accepting parody exception, yet rejecting UGC exception on these grounds, the 2014 Bill reflects Hong Kong’s jurisprudential confusion in implementing TRIPS’ three-step test. The 2011 Bill’s failure probably had terrified the Government enough,78 who was made readily accepting parody exception once found the ends of free speech in way of “parody, satire, caricature and pastiche” without even any further examination. Hong Kong’s inconsistent jurisprudence or practice of the three-step test is probably the key hindrance of its ability from appreciation of the ontological dynamics between the author of the existing copyright work and the future author of the UGC secondary creation. What makes things worse is that the UGC “dealing” of existing copyright work is such a common phenomenon in the digital environment. 3.3.3 [Fair] Dealing in the Digital Environment The three-step test is the key factor defined by the 2014 Bill’s adoption of the parody exception and its refusal of the UGC exception within the framework of fair dealing. The three-step test itself had its own trajectory of evolution from the Berne Convention to the TRIPS Agreement and beyond. In the context of the Berne Convention, the three-step test applies only to exceptions to exclusive reproduction rights, but not other exceptions like quotations and educational illustrations79 or reporting current events.80 The three-step test was then incorporated in the TRIPS Agreement with expanded scope to cover all exclusive rights under TRIPS.81 WIPO’s two Internet treaties, the WIPO Copyright Treaty 1996 (WCT) and the WIPO Performances and Phonograms Treaty 1996 (WPPT) further expanded the three-step test to minimum rights established by these two treaties into the digital network environment. The WCT and WPPT marked the beginning of the digital era of modern copyright protection, and set a milestone in the evolution of the three-step test. These two Internet Treaties established new types of exclusive rights of exploitation in the digital environment for right holders, yet also balanced these rights with internet users’ interests. Under the WCT, for example, a country might set limitations of exceptions to the rights granted to authors of copyright works under the WCT provided that it complies with the three-step test.82 Most importantly, as indicated in the Agreed Statement to the WCT, the WCT permits countries “to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention,” and to “devise new exceptions and limitations that are appropriate in the digital network environment.”83 A similar approach can be found in the WPPT in which limitations of or exceptions to exclusive rights granted to performers and producers of phonograms extend into the digital environment.84

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When the Internet Treaties connected the analogue and digital worlds through the application of the three-step test, the unique author-user dynamics in the digital environment inevitably challenged the balance between copyright holders and users under a traditional copyright regime. During the development of the three-step test from the Berne Convention, to the TRIPS Agreement, and then to the WCT and the WPPT, the boundary of “dealing” has gone beyond “reproduction” significantly, and the reach of the three-step test has expanded from analogue to digital environment. In the traditional analogue era, the dealing of copyright works is usually very straightforward, and the copyright world has a very clear-cut author and reader dichotomy. In the digital age, copyright users actively participate in developing and collaborating in distributing online content and web applications, which blurs the author-user dichotomy. In the “participative web” era, a user of copyright works might at the same time also be a creator. For example, both parodists and secondary creators are not copyright users in a traditional sense. During the public consultation for the 2014 Bill, both the Neo Democrats and the Concern Group of Rights of Derivative Works regarded the UGC as a product of creativity forming an integral part of the local creative culture and suggested that various forms of secondary creation have their own history of development and had long been recognized as creative arts with a long history.85 However, as limited by its problematic fair dealing jurisprudence and, as will be discussed below, its out of date low originality test, fair dealing for the purpose of secondary creation is hardly practical if not impossible under Hong Kong’s current copyright regime. The jurisprudence of fair dealing indicated in various exceptions in Hong Kong’s current copyright regime is not a fully consistent perspective. Under Hong Kong’s current copyright regime, as well as the UK’s, fair dealing is dealt with by a restricted and exhaustive list rather than handled with a general principle of fair use like that in the USA.86 The fair use doctrine in the USA developed as common law from a nineteenth-century case that identified four factors to be considered against copyright infringement.87 The four factors for consideration in common law fair use doctrine were then incorporated into the US Copyright Act 1976.88 In Hong Kong’s context, acts falling into the fair dealing category cover only those listed in the Copyright Ordinance, including namely “research and private study” under s 38, “criticism, review and news reporting” under s 39, and education use under ss 41–45. The first one, “research and private study,” is listed directly after the three-step test in s 37. Under Hong Kong’s Copyright regime, the fair dealing exception for research and private study is also subject to the four-factor check, i.e. factors of purpose, nature, amount, and effect will need to be taken into account for considering fair dealing exception.89 These four factors are then repeatedly referred to in the education exception of “fair dealing for purpose of giving or receiving instruction”90 and the exception of “fair dealing for purpose of public administration.”91 However, the fourfactor check was absent in the reporting current event exception of “criticism, review and news reporting.”92 This obvious absence—more or less a careless omission—was rectified in the 2014 Bill, which substituted s 39 with “criticism, review, quotation, and reporting and commenting on current events,” and the four-factor check was finally introduced to be consistent with the other fair dealing.93

82 The Origin of Copyright However, although the 2014 Bill rectified previous jurisprudential inconsistency as to fair dealing’s four-factor check, new jurisprudential inconsistency was created in the Bill’s hesitation between adopting parody and UGC exceptions. In the 2014 Bill, fair dealing remains a restricted exhaustive list. All acts of fair dealing, no matter private study, education, public administration, or comment on and reporting of current events, though going beyond traditional “reproduction,” remain creation-clean dealings. The key reason for this comes from the strict prohibition of derivative works. As to derivative work, it is generally recognized that there are two different approaches between the “standard-based approach” that defines derivative work in a broad and open-ended fashion like the USA, Germany, and China and the “rulebased approach” that defines it in an exhaustive list of adaptation rights like the UK, Australia, and Singapore.94 Although these two approaches define derivative works differently, both unexceptionally vest derivative work’s rights exclusively to copyright holders. Under both Hong Kong and the UK’s copyright regimes, the right to make derivative work—work based on or derived from another copyrighted work—is exclusively vested to the right holder of the original work: the owner of the copyright in a work has “the exclusive right” to “make an adaptation of the work or do any of the above [acts restricted by copyright] in relation to an adaptation.”95 For a literary work, for example, only the copyright holder has the right to make adaptations, including translation, dramatizations, and conveying the story in whole or in part by means of pictures.96 Without the authorization from the copyright holder, no one can make any arrangement or transcription of a musical work.97 Although derivative works in the USA are defined more broadly than that of the British ones to include adaptation or “any other form in which a work may be recast, transformed, or adapted,”98 only the copyright owner has the exclusive rights to do and to authorize preparation of “derivative works based upon the copyrighted work.”99 The excessively broad derivative work right has been subject to much academic criticism, in particular of its limitation on democratic participation and free expression,100 as well as its deterrence of future follow-on creation.101 Wong, for example, argued that: [i]n an age where the reproduction right is no longer just about literal copying and economics-based arguments in favor of an expansive derivative work right lack empirical proof, it seems unnecessary to protect the market control and related incentives that accrue to the initial author through a broad derivative work right for the initial work.102 A German-style flexibility might be a more sensible solution to the issue. While adaptations and transformations of a work cannot be done without an author’s consent, the German Copyright Law also states that “[a]n independent work created by free use of the work of another person may be published and exploited without the consent of the author of the used work.”103 What makes things worse is that the bar of the originality test is a low one under both Hong Kong and the UK’s current copyright regimes. The traditional “sweat of the brow” doctrine developed more than a century ago is still considered to be a good law in both Hong Kong and the UK.104 Hong Kong’s court

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straightforwardly pointed out that “[t]he standard [of the originality test] required is a low one.”105 This certainly prevents Hong Kong’s regime from accommodating possible secondary creations’ challenge against original copyright works. Even worse, “the application of a low standard of originality to a work that is based on a preexisting copyrighted work may, ironically, run contrary to the aims of semiotic democracy.”106 Whereas in Canada, it is not a copyright infringement if an individual uses copyrighted work in the creation of the UGC as long as the UGC creation is “a new work or other subject-matter in which copyright subsists.”107 However, the post-CCH development in Canada has seen the bar of the originality test going beyond the “sweat of the brow” doctrine and, arguably, public policy considerations have come into play.108 The OECD’s approach to UGC also emphasizes that the UGC “reflects a certain amount of creative effort.”109 Emphasis on creativity as seen in both Canadian and OECD approaches to the UGC exception not only prevents copyright challenges from UGC with low or no creativity, but also leaves room for development of future creativity building on existing copyrighted works.110 This option is not available in Hong Kong, nor arguably the UK, as the originality requirement is a low one in Hong Kong. Certainly, the parody exception included in the 2014 Bill presents a tiny breakthrough in the current ban on secondary creation. However, the possibility of secondary creation under the parody exception, if adopted, is limited only to those “for the purpose of parody, satire, caricature or pastiche.”111 It does not really matter how noble your purpose might be; secondary creation is only welcomed if you do it for the “purpose of parody, satire, caricature or pastiche.” In this regard, the Neo Democrats are right that the 2014 Bill forces secondary creators to only write in the form of parody and satire, thus downgrading secondary creators to clowns.112 By allowing right holders’ exclusive control over derivative works and prohibiting possible secondary creation, the current copyright regime presents itself as the end instead of the beginning of creations. This is unfortunately linked to the confusion as to the ontological interdependence between copyright and free speech, as well as to the inability to appreciate the ontological difference between parody and UGC exceptions.

3.4 Conclusion: Authorship and Copyright Ontological Integrity From the 2011 Bill to the 2014 Bill, impact on free speech has been the insurmountable obstacle to copyright amendment in Hong Kong. Owing to its insufficient attention to free speech, in particular in accommodating parody exception, the “premature” 2011 Bill was aborted in 2012. Learning from this lesson, the 2014 Bill expanded the fair dealing exceptions to accommodate parody works for the purpose of “parody, satire, caricature or pastiche” free from copyright infringement. Once again, the free speech controversy was resurrected under the UGC copyright exception issue. However, the analysis above reminds us that copyright protection and free speech share with each other the same historical origin in individuals’ fight against government censorship. Copyright protection and free speech are indeed complementary to one another and together defend a

84 The Origin of Copyright true free expression, as both forms and ideas of free speech are protected. In either parody or UGC exception discussion, copyright and free speech share an ontological interdependence in defending individual autonomy. The political unrest in Hong Kong provided fertile soil for the myth of free speech rhetoric and formed the unescapable ontological political being hindering the copyright amendment from going further. It needs to be reiterated once more that copyright amendment for the digital era is not the right forum for the fight of free speech against government interference, though undoubtedly free speech is of fundamental importance to everyone in Hong Kong and beyond. Moreover, the 2014 Bill reveals more issues beyond this. First, both the 2014 Bill’s adoption of parody exception and its refusal of the UGC exception are grounded on the application of the three-step test, and in particular the first-step requirement of confining exceptions to special cases. This actually fails to carefully examine the three-step test under Hong Kong’s copyright regime. Our analysis of the Ordinance’s application as to the first-step test indicates a certain inconsistency which makes the Bill’s grounds for rejecting UGC exception tenuous. Probably owing to the fear of repeating 2011 Bill’s failure, the Government accepted parody exception without hesitation once it found the ends of free speech in the way of “parody, satire, caricature and pastiche” without even any further examination. Second, while rejecting the UGC exception is consistent with the traditional copyright regime’s conservative limitation on any possible derivative creation that challenges author’s exclusivity, adoption of the parody exception transcended an author’s control of derivative creation. The signal that the 2014 Bill is sending— that no secondary creation building on existing copyrighted works is allowed except for parody purpose—is an unpleasant one. It is also logically problematic. Moreover, given the low originality requirement in Hong Kong as well as in the UK, the current copyright regime fails to maintain the balance of interests between authors and users through the dynamic participative web in the digital network environment. The failure of the 2014 Bill reveals an ontological complexity that is not limited to Hong Kong only. While copyright and free speech share an ontological interdependence in defending individual autonomy against government intrusion, parody and UGC issues each reveals different copyright ontological complexity. While parody issue specifies ontological dynamics between the author and user of the existing work, UGC exception reveals an ontological dynamics between the author of the existing work and the future author of the secondary creation. Locating the parody and UGC exception debates in an antagonist framework between copyright and free speech unfortunately undermines the ontological interdependence between author, reader, and future creator. Fair dealing as the possible cure of the ontological isolation between authorship, readership, and entrepreneurship was also made impossible owing to Hong Kong’s confusing application of the three-step test caught between parody and UGC exceptions. Continuing the prohibition of secondary creation, with a limited exception for secondary creations in parody works for the “purpose of parody, satire, caricature or pastiche” only, the 2014 Bill indicates that copyright protection is the end, owing to an author’s exclusive derivative work right, rather than the beginning, owing to its limitation on

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secondary works of creation. Future success in amending the copyright regime for the digital era requires a more thorough examination into the application of threestep test, better clarification of the relationship between copyright protection and free speech and a balanced consideration between parody and UGC to make copyright protection the beginning instead of the end of creation in digital era.

Notes 1 An earlier version of this chapter has been published. Wenwei Guan, “Fair Dealing Doctrine Caught between Parody & UGC Exceptions: Hong Kong’s 2014 Copyright Amendment and Beyond.” 45(3) Hong Kong Law Journal (2015), pp. 719–742. Revision of the article included in this book with permission from the publisher, Sweet & Maxwell Asia, ©2015. 2 For details of the discussion of the Copyright (Amendment) Bill 2011, see Chapter 2 above. 3 Commerce and Economic Development Bureau (CEDB), Hong Kong. “Treatment of Parody under the Copyright Regime Consultation Paper,” available at: www.gov. hk/en/residents/government/publication/consultation/docs/2013/Parody.pdf (accessed 22 December 2020). 4 CEDB, Hong Kong. “LegCo Panel on Commerce and Industry: Public Consultation on Treatment of Parody under the Copyright Regime,” LC Paper No. CB(1)516/ 13–14(03), para 9, available at: www.legco.gov.hk/yr13-14/english/panels/ci/pap ers/ci1217cb1-516-3-e.pdf (accessed 22 December 2020). 5 CEDB, Hong Kong, Public Consultation on Treatment of Parody under the Copyright Regime, para. 10. 6 Clause 19, Copyright (Amendment) Bill 2014 (the 2014 Bill), available at LegCo official site at www.legco.gov.hk/yr13-14/english/bills/b201406131.pdf (accessed 22 December 2020). See discussion infra 3.2.1 for more details. 7 CEDB, Hong Kong, “Legislative Council Brief: Copyright (Amendment) Bill 2014” (CITB 07/09/17), para 19, available online at LegCo official site www.legco.gov.hk/ yr13-14/english/bills/brief/b201406131_brf.pdf (accessed 22 December 2020). 8 Ibid. 9 See e.g., Neo Democrats, “Position Paper on Copyright (Amendment) Bill 2014,” CB (4)67/14–15(118), available at www.legco.gov.hk/yr13-14/chinese/bc/bc106/pap ers/bc1061025cb4-67-118-c.pdf; or Concern Group of Rights of Derivative Works, “Opinions on Copyright (Amendment) Bill 2014,” B(4)67/14–15(115), available at www.legco.gov.hk/yr13-14/chinese/bc/bc106/papers/bc1061025cb4-67-115-c.pdf (accessed 22 December 2020). 10 Ibid. 11 US Digital Millennium Copyright Act (DMCA), an Act to amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes, enacted by the 105th United States Congress, Public Law 105–304, 112 Stat 2860 (1998). 12 Commerce, Industry and Technology Bureau, Hong Kong. “Copyright Protection in the Digital Environment,” (December 2006), available at: www.info.gov.hk/archive/ consult/2007/digital_copyright_e.pdf (visited 22 December 2020). 13 CEDB, “Preliminary Proposals for Strengthening Copyright Protection in the Digital Environment,” (April 2008), available at: www.ipd.gov.hk/eng/intellectual_prop erty/copyright/Consultation_Document_Prelim_Proposals_Eng(full).pdf (visited 22 December 2020). 14 CEDB, Hong Kong, “Proposals for Strengthening Copyright Protection in the Digital Environment,” November 2009, LC Paper No. CB(1)341/09–10(08). The

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15 16 17

18 19

20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

37 38

proposal is available at LegCo Official site at: www.legco.gov.hk/yr09-10/english/pa nels/ci/papers/ci1117cb1-341-8-e.pdf (visited 22 December 2020). CEDB, “Proposals for Strengthening Copyright Protection in the Digital Environment,” paras 4–8. Copyright (Amendment) Bill 2011 (introduced 3 June 2011), available at: www. legco.gov.hk/yr10-11/english/bills/b201106033.pdf (visited 22 December 2020). CEDB and Intellectual Property Department (IPD, Hong Kong, “Copyright Exception for Parody,” CB(1)385/11–12(04) (November 2011), para 24. Available at LegCo, Hong Kong at: www.legco.gov.hk/yr10-11/english/bc/bc10/papers/ bc101122cb1-385-4-e.pdf (visited 22 December 2020). Ibid. LegCo, Hong Kong, “Paper for the House Committee meeting on 20 April 2012: Report of the Bills Committee on Copyright (Amendment) Bill 2011,” (CB(1) 1610/11–12), para 11, available at LegCo, Hong Kong at: www.legco.gov.hk/ yr11-12/english/hc/papers/hc0420cb1-1610-e.pdf (visited 22 December 2020). Ibid. For details, see Wenwei Guan, “When Copyrights Meet Human Rights: ‘Cyberspace Article 23’ and Hong Kong’s Copyright Protection in the Digital Era,” 42(3) Hong Kong Law Journal (2012), 786. CEDB, “Treatment of Parody under the Copyright Regime Consultation Paper” (11 July 2013), available at: www.gov.hk/en/residents/government/publication/con sultation/docs/2013/Parody.pdf (visited 22 December 2020). See CEDB, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” paras 4–5. CEDB, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” para 13. Clause 19, Copyright (Amendment) Bill 2014. See CEDB, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” para 13. Ibid. Ibid., Annex C. Ibid. IPD, Hong Kong, “Why is the Government Consulting the public on ‘parody’ but not on ‘Secondary creation’?” Available at: www.ipd.gov.hk/eng/intellectual_prop erty/copyright/Q_A1.htm (accessed 22 December 2020). Ibid. Ibid. See CEDB, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” para 19. Ibid. Organisation for Economic Co-operation and Development (OECD), Participative Web and User-Created Content: Web 2.0, Wikis and Social Networking (OECD: 2007), 9. Ibid. OECD’s definition of UGC was cited by the US Department of Commerce in its Green Paper released in July 2013, “Copyright Policy, Creativity, and Innovation in the Digital Economy,” as well as by the Australian Law Reform Commission in its final report to the Australian Government in November 2013, “Copyright and the Digital Economy.” However, others, such as Gervais and Halbert, define UGC according to its function without much focus on its “creative effort.” See Teresa Scassa, “Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law,” in Michael Geist ed., The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (Ottawa, ON: University of Ottawa Press, 2013), 432. OECD, Participative Web and User-Created Content, 13, 90. Lenz v. Universal Music Corp 572 F Supp 2d 1150 (2007). In 2007, Stephanie Lenz posted on YouTube a home video of her children dancing to Prince’s song “Let’s Go Crazy.” As the copyright holder of the song, Universal Music sent YouTube a takedown notice pursuant to the DMCA claiming that Lenz’s video violated their

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40 41 42 43

44

45 46

47 48 49

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copyright in the song. Lenz claimed fair use of the copyrighted material and sued Universal for misrepresentation of a DMCA claim. The US District Court for the Northern District of California ruled in 2013 that copyright holders must consider fair use before issuing takedown notices for content posted on the Internet. Lenz’s home video has now become available on YouTube again. It should be made clear here, however, there is no specific UGC exemption in US copyright law. The issue is either dealt with through the fair use mechanism as seen in the Lenz case, or permitted under the licensing mechanism. US Department of Commerce Internet Policy Task Force (July 2013), “Copyright Policy, Creativity, and Innovation in the Digital Economy,” 65–66 (July 2013). The Green Paper is available at US Patent and Trademark Office official site: www.uspto. gov/sites/default/files/news/publications/copyrightgreenpaper.pdf (accessed 22 December 2020). See s 29.21 of the Canadian Copyright Modernization Act, came into effect in November 2012. Wenwei Guan, Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014), 3–4. See Guan, “When Copyrights Meet Human Rights,” 799. Lyman R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968), 114–142. Censorship for sure was—and probably still is—used to curb free speech. As Patterson pointed out (Ibid., 115), however, the Stationers’ desire of controlling press business through censorship regulation was the driving force facilitated the early development of copyright laws, and “[t]he Statue of Anne was at least in part the result of these efforts.” The classic idea-expression dichotomy in copyright jurisprudence was developed through early case law in common law in Baker v. Selden 101 US 99 (1879) and Kenrick v. Lawrence [1890] LR 25, QBD 99, and is now widely found in national law, such as s 102(b) of the US Copyright Act 1976, and international law, such as Art. 9(2) of the TRIPS Agreement, and Art. 2 of the WIPO Copyright Treaty 1996. See also discussion supra 1.2.2 for more details. See Guan, “When Copyrights Meet Human Rights,” 800–801. Ashdown v. Telegraph Group Ltd [2002] Ch. 149, [46] (Lord Phillips). Lord Phillips suggested (para 39): We have already observed that in most circumstances, the principle of freedom of expression will be sufficiently protected if there is a right to publish information and ideas set out in another’s literary work, without copying the very words which that person has employed to convey the information or express the ideas. In such circumstances, it will normally be necessary in a democratic society that the author of the work should have his property in his own creation protected. Strasbourg jurisprudence demonstrates, however, that circumstances can arise in which freedom of expression will only be fully effective if an individual is permitted to reproduce the very words spoken by another. See Guan, “When Copyrights Meet Human Rights,” 793–794. Eldred v. Ashcroft, 537 US 186, 219 (2003). Emphasis in original. See, eg, Pamela Samuelson, “The Constitutional Law of Intellectual Property after Eldred v. Ashcroft,” 50 Journal of Copyright Society U.S.A. (2002–2003), 547–579; Michael D Birnhack, “Copyright Law and Free Speech after Eldred v. Ashcroft,” 76 Southern California Law Review (2003), 1275–1329; Craig W. Dallon, “Original Intent and the Copyright Clause: Eldred v Ashcroft Gets It Right,” 50 Saint Louis University Law Journal (2005–2006), 307– 359; Paul Bender, “Copyright and the First Amendment after Eldred v. Ashcroft,” 30 Columbia Journal of Law & the Arts (2006–2007), 349–354; David E Shipley, “Congressional Authority over Intellectual Property Policy after Eldred v. Ashcroft: Deference, Empty Limitations, and Risks to the Public Domain,” 70.4 Albany Law Review (2007), 1255– 1295; David S Olson, “First Amendment Interests and Copyright Accommodations,” 50 Boston College Law Review (2009), 1393–1423.

88 The Origin of Copyright 50 51 52 53 54 55

56 57 58 59 60 61 62

63 64 65

66 67 68 69 70 71

72 73

Golan v. Holder, 132 S Ct 873, 889–890 (2012). Copyright Ordinance, s 2(1). The 4th Recital of the Preamble, TRIPS Agreement. Jeremy Bentham, Theory of Legislation (London: Adamant Media Co., 2005), 113. F. A. Hayek, The Fatal Conceit: The Errors of Socialism (London: Routledge, 1988), 63. F. A. Hayek, The Fatal Conceit: The Errors of Socialism, 30–31, 34. In his examination of the evolution of social institutions, Hayek emphasizes that private property “is the heart of the morals of any advanced civilization,” [and its adoption] marks the beginning of civilization.” See Guan, Intellectual Property Theory and Practice, 13. EC−Trademarks and Geographical Indications, WTO Panel Report, WT/DS174/R (15 March 2005), para. 7.210. See Lenz v. Universal Music Corp 572 F Supp 2d 1150 (2007). Good examples could be government censorship or laws that prohibit press and publication, yet certainly not prohibition against using other people’s copyright material to express your own opinions. See discussion supra section 2.3.2 in particular for more details. See CEDB, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” para 19. CEDB, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” Annex F, para 6. The Government suggested: According to the WTO Panel Report (WT/DS160/R), “special” means that an exception or limitation must be clearly defined and should be narrow in scope and has an exceptional or distinctive objective. The use of an existing work in the creation of a new work in which copyright subsists solely for non-commercial purposes as provided by section 29.21(1)(a) of the Canadian UGC exception may not be regarded as “clearly defined.” In particular, the dividing line “for non-commercial purposes” may be too vague. Further, the scope may not be considered “narrow” given the large number of potential users. The “for non-commercial purposes” requirement may not suggest “an exceptional or distinctive objective.” In view of the above, it is arguable as to whether this exception complies with the first step. CEDB, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” para 7. Art. 13, TRIPS Agreement. Art. 9(2) of the Berne Convention states, “[i]t shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” Copyright Ordinance, s 37(3). Copyright Ordinance, s 37(1). US – Section 110(5) Copyright Act, WTO Panel Report, WT/DS160/R (15 June 2000). US – Section 110(5) Copyright Act, paras 6.108–6.110. Directive 2011/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (Information Society Directive). Art 5(5), the Directive states: The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder. Infopaq International A/S v. Danske Dagblades Forening, Case C-302/10, ECJ (17 January 2012). Ibid., [57]. Under Art 5(1) of the Information Society Directive, temporary reproduction for transmission purpose or for purpose of a lawful use of a work to be made which has “no independent economic significance” is exempted from copyright infringement.

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74 See CEDB, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” Annex E, para 3. 75 Ibid., para 4. 76 According to the Government (ibid., paras 5–7), other considerations needed include: look to the criteria of the remaining two steps; subject the special treatment to fair dealing assessment; and include in the exception a list of relevant assessment factors – which include the nature/purpose of dealing, the nature of the work, the amount/ substantiality of dealing, and the dealing effect—to assist court’s analysis. 77 Christophe Geiger, Daniel Gervais, and Martin Senftleben, “The Three-Step Test Revisited: How to Use the Test’s Flexibility in National Copyright Law,” 29(3) American University International Law Review (2014), 585. For more discussion on the three-step test, see Guido Westkamp, “The ‘Three-Step Test’ and Copyright Limitations in Europe: European Copyright Law between Approximation and National Decision Making,” 56(1) Journal of the Copyright Society of the USA (2008), 1–65; Andrew F. Christie and Robin Wright, “A Comparative Analysis of the Three-Step Tests in International Treaties,” 45(4) International Review of Intellectual Property and Coopetition Law (2014), 409–433. 78 Please refer to Chapter 2 about how copyright and free speech which share an ontological interdependence defending individual autonomy were eventually confused owing to distrust about the government’s political reform, thus finally leading to the failure of the copyright amendment in 2011 Bill. 79 Art. 10, Berne Convention. 80 Art. 10bis, Berne Convention. 81 In interpreting the three-step test similarly worded in both Berne Convention and the TRIPS Agreement, the WTO Panel in US–Section 110(5) Copyright Act (footnote 114 to para 6.111) noted the different context with the same term: for “an exception for the reproduction right” in Berne, yet for “exception for other exclusive rights conferred by copyrights” in TRIPS. 82 Art. 10, WIPO Copyright Treaty 1996 (WCT). 83 Footnote 9, Agreed Statement concerning Art. 10, WCT. 84 Art.16 and Footnote 15, Agreed Statement concerning Art. 16, WIPO Performances and Phonograms Treaty 1996 (WPPT). 85 See eg, Neo Democrats, “Position Paper on Copyright (Amendment) Bill 2014”; Concern Group of Rights of Derivative Works, “Opinions on Copyright (Amendment) Bill 2014.” 86 For a general comparative study of the two, see Giuseppina D’Agostino, “Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use,” 53, McGill Law Journal (2008), 309–363. 87 Folsom v. Marsh 9 FCas 342 (CCD Mass 1841) is generally regarded as the first “fair use” case law in the USA. 88 17 USC s 106 and 106A. The four factors of analysis for fair use set forth in the Copyright Act 1976 include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the use, and the market effect of the use. 89 Copyright Ordinance, s 38(3). 90 Copyright Ordinance, s 41A(2). 91 Copyright Ordinance, s 54(2). 92 Copyright Ordinance, s 39. 93 2014 Bill, Clause 18, “Section 39 substituted.” 94 Patrick R Goold, “Why the U.K. Adaptation Right Is Superior to the U.S. Derivative Work Right,” 92 Nebraska Law Review (2014), 846–847. 95 Copyright Ordinance, s 22.1(g). Cf s 16.1(e), UK Copyright, Designs and Patents Act 1988 (CDPA 1988). 96 Copyright Ordinance, s 29.3(a). Cf s 21.3(a), CDPA 1988.

90 The Origin of Copyright 97 98 99 100 101 102 103 104

105

106 107 108 109 110

111 112

Copyright Ordinance, s 29.3(c). Cf s 21.3(b), CDPA 1988. US Copyright Act 1976, 17 USC s 101. US Copyright Act 1976, 17 USC s 106(2). Neil Weinstock Netanel, “Copyright and a Democratic Civil Society,” 106, Yale Law Journal (1996), 283, 376–382. See also, Jed Rubenfeld, “The Freedom of Imagination: Copyright’s Constitutionality,” 112 Yale Law Journal (2002), 1, 49–54. Michael Abramovicz, “A Theory of Copyright’s Derivative Right and Related Doctrines,” 90 Minnesota Law Review (2005), 317, 329. Mary W. S. Wong, “‘Transformative’ User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?” 11(4) Vanderbilt Journal of Entertainment & Technology Law (2009), 1075, 1139. Arts 23 and 24(1), German Law on Copyright and Neighboring Rights (German Copyright Law). Walter v. Lane [1900] AC 539. A later case involving the University of London reflects the doctrine in which the Court suggested “what is not copied is original.” See University of London Press v. University Tutorial Press Ltd [1916] 2 Ch 601. Given that the “sweat of the brow” doctrine has been abandoned in most other jurisdictions, the UK and Hong Kong appear to be somewhat behind in this issue. Tai Shing Diary Ltd v. Maersk Hong Kong Ltd [2007] 2 HKC 23. The Court suggested: The author may draw on existing material, so long as more than negligible or trivial effort or relevant skill and judgment have been expended in the creation of the work. The standard required is a low one, but the effort must not be as trivial as to be characterized as a purely mechanical exercise. The skill and effort protected is not only that expended on its manner of presentation, but of collecting, selecting, arranging, and presenting the available information in an intelligible manner. Wong, “‘Transformative’ User-Generated Content in Copyright Law,” 1091. Canadian Copyright Modernization Act, s 29.21(1). Carys J Craig, “The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest,” 2(2) University of Ottawa Law & Technology Journal (2005), 427, 444–445. See OECD, Participative Web and User-Created Content. Fair dealing has a built-in accommodation of a high originality test that facilitates creativity and at the same time prevents abuses from “non-fair use.” The low originality test in Hong Kong and the UK disables originality test’s natural built-in checks-and-balances against abuses if the UGC exception establishes. See Copyright (Amendment) Bill 2014. See Neo Democrats, “Position Paper on Copyright (Amendment) Bill 2014.”

Bibliography General Abramovicz, Michael. “A Theory of Copyright’s Derivative Right and Related Doctrines,” 90 Minnesota Law Review (2005), 317–388. Bender, Paul. “Copyright and the First Amendment after Eldred v. Ashcroft,” 30 Columbia Journal of Law & the Arts (2007), 349–354. Bentham, Jeremy. Theory of Legislation (London: Adamant Media Co., 2005, an Elibron Classics Replica of 1896 edition by Kegan Paul, Trench, Trübner & Co., Ltd., London). Birnhack, Michael D.“Copyright Law and Free Speech after Eldred v. Ashcroft,” 76 Southern California Law Review (2003), 1275–1329.

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Christie, Andrew F. and Robin Wright, “A Comparative Analysis of the Three-Step Tests in International Treaties,” 45(4) International Review of Intellectual Property and Coopetition Law (2014), 409–433. Commerce and Economic Development Bureau, Hong Kong. “Preliminary Proposals for Strengthening Copyright Protection in the Digital Environment” (2008). Commerce and Economic Development Bureau, Hong Kong. “Proposals for Strengthening Copyright Protection in the Digital Environment” (2009). Commerce and Economic Development Bureau, Hong Kong, Intellectual Property Department. “Copyright Exception for Parody,” CB(1)385/11–12(04) (2011). Commerce and Economic Development Bureau, Hong Kong. “Treatment of Parody under the Copyright Regime Consultation Paper” (2013a). Commerce and Economic Development Bureau, Hong Kong. “LegCo Panel on Commerce and Industry: Public Consultation on Treatment of Parody under the Copyright Regime,” LC Paper No. CB(1)516/13–14(03) (2013b). Commerce and Economic Development Bureau, Hong Kong. “Legislative Council Brief: Copyright (Amendment) Bill 2014” (2014). Commerce, Industry and Technology Bureau, Hong Kong. “Copyright Protection in the Digital Environment” (2006). Craig, Carys J.“The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest,” 2(2) University of Ottawa Law & Technology Journal (2005), 425–446. D’Agostino, Giuseppina. “Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use,” 53 McGill Law Journal (2008), 309–363. Dallon, Craig W.“Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets It Right,” 50 Saint Louis University Law Journal (2005–2006), 307–359. Geiger, Christophe, Daniel Gervais, and Martin Senftleben, “The Three-Step Test Revisited: How to Use the Test’s Flexibility in National Copyright Law,” 29(3) American University International Law Review (2014), 581–626. Goold, Patrick R.“Why the U.K. Adaptation Right Is Superior to the U.S. Derivative Work Right,” 92 Nebraska Law Review (2014), 843–896. Guan, Wenwei. Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014). Hayek, Friedrich August. The Fatal Conceit: The Errors of Socialism (London: Routledge, 1988). Netanel, Neil Weinstock. “Copyright and a Democratic Civil Society,” 106 Yale Law Journal (1996), 283–388. Olson, David S.“First Amendment Interests and Copyright Accommodations,” 50 Boston College Law Review (2009), 1393–1423. Organisation for Economic Co-operation and Development (OECD). Participative Web and User-Created Content: Web 2.0, Wikis and Social Networking (2007). Patterson, Lyman R. Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968). Rubenfeld, Jed. “The Freedom of Imagination: Copyright’s Constitutionality,” 112 Yale Law Journal (2002), 1–60. Samuelson, Pamela. “The Constitutional Law of Intellectual Property afterJournal of Copyright Society U.S.A. (2002–2003),547–579. Scassa, Teresa. “Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law,” in Michael Geist, ed., The Copyright Pentalogy: How the

92 The Origin of Copyright Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (Ottawa, ON: University of Ottawa Press, 2013), 431–453. Shipley, David E. “Congressional Authority over Intellectual Property Policy after Eldred v. Ashcroft: Deference, Empty Limitations, and Risks to the Public Domain,” 70.4 Albany Law Review (2007), 1255–1295. US Department of Commerce, Internet Policy Task Force. “Copyright Policy, Creativity, and Innovation in the Digital Economy” (2013). Westkamp, Guido. “The ‘Three-Step Test’ and Copyright Limitations in Europe: European Copyright Law between Approximation and National Decision Making”, 56(1) Journal of the Copyright Society of the USA (2008), 1–65. Wong, Mary W. S.“‘Transformative’ User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?” 11(4) Vanderbilt Journal of Entertainment & Technology Law (2009), 1075–1140.

Cases Ashdown v. Telegraph Group Ltd, [2002] Ch 149 (CA) Baker v. Selden, 101 US 99 (1879) EC–Trademarks and Geographical Indications, WTO Panel Report, WT/DS174/R (15 Mar 2005) Eldred v. Ashcroft, 537 US 186 (2003) Folsom v. Marsh, 9 FCas 342 (CCD Mass 1841) Golan v. Holder, 565 US 302, 132 S. Ct. 873 (2012) Kenrick v. Lawrence, [1890] LR 25, QBD 99 Infopaq International A/S v. Danske Dagblades Forening, ECJ Case C-302/10 (17 January 2012) Lenz v. Universal Music Corp, 572 F Supp 2d 1150 (2007) Tai Shing Diary Ltd v. Maersk Hong Kong Ltd, [2007] 2 HKC 23 US –Section 110(5) Copyright Act, WTO Panel Report, WT/DS160/R (15 June 2000) Walter v. Lane, [1900] AC 539

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Copyright Ontological Trilogy III Contract Override’s EntrepreneurshipReadership Ontological Dynamics1

As the third part of the copyright ontological trilogy, this chapter takes up the contract override issue aiming at a critique of the copyright entrepreneurship-readership ontological dynamics. Allowing contract, as the means for individual freedom manifested in private property, to override those copyright exceptions aiming at limiting private rights for the balance of rights and obligations finds no jurisprudential support and is indeed against copyright ontological integrity. With reference to various practices in other jurisdictions, this chapter calls for careful attention to be paid to the ontological integrity as to the nature of copyright, contract freedom and international obligation for the ontological balance between copyright authorship, readership, and entrepreneurship in copyright digital reform.

4.1 Introduction The two 1996 “Internet Treaties” by the World Intellectual Property Organization (WIPO) signified the beginning of the digital era of modern copyright laws.2 Hong Kong’s effort adapting the current copyright law—the 1997 Copyright Ordinance (Cap 528)—for the digital age has been under way for more than a decade since the first public consultation in 2006.3 Although great effort has been put into it, the Hong Kong Government failed in both attempts in 2012 and 2016, for various reasons, and Hong Kong’s copyright amendment for the digital age appears to be a mission impossible in the very near future. Interestingly, in sharp contrast with the difficult journey of copyright amendment, Hong Kong Government’s effort amending the 1997 Patents Ordinance (Cap 514) for a robust intellectual property regime “promoting innovation and growth in a knowledge-based economy” went very smoothly.4 Building on the 2011–12 public consultation and following the local legislature, Legislative Council (LegCo) Panel deliberation,5 the Patents (Amendment) Bill6 was introduced into LegCo in October 2015 and passed in June 2016.7 Especially in the context of Hong Kong’s development of a knowledge-based economy, the failure and controversies of the copyright amendment has attracted much academic attention and warrants an in-depth examination. As revealed in the preceding chapters, various interrelated issues have stirred up public controversy and eventually led to the failures of the copyright amendment in Hong Kong both in 2012 and 2016. The failure of the attempt at introducing the Copyright (Amendment) Bill 2011, for example, mostly lies in the public’s DOI: 10.4324/9781003163282-4

94 The Origin of Copyright distrust of the Bill owing to the introduction of the criminal sanction to protect “technology neutral” communication rights, yet without any copyright exception added for parody to accommodate free speech.8 The Copyright (Amendment) Bill 2014’s introduction of the parody exception, although addressing the previously raised parody exception issue, failed to respond to the public’s call for copyright exceptions for user-generated content (UGC) in the context of free speech through secondary creation, which led to the eventual failure of penetrating the blockade to the 2014 Bill.9 Worse yet, new controversies, such as the issue of “contract override,” have been brought up and fueled the public’s distrust of the Bill.10 The LegCo Member’s Committee Stage Amendments concentrated on issues of UGC, fair use, and contract override amendments,11 which are believed to be the key factors leading to the eventual failure of the 2014 Bill. At a time when Hong Kong is in the process of a critical transition to an intellectual property essential economy, the continued failure of the copyright amendment leads us to a critical examination of the copyright amendment controversies and its theoretical implications. To continue the copyright ontological trilogy critique of author-user dynamics in Chapter 2 and author-UGC creator dynamics in Chapter 3, this chapter takes up the contract override issue to explore the industry-user copyright ontological complexity to complete the last of the ontological trilogy. With a focus on the contract override issue in Hong Kong’s copyright amendment and by reference to experiences in other jurisdictions, the chapter offers a critical analysis of the tension between copyright protection and freedom of contract and its ontological implications for copyright amendment. After a brief introduction of Hong Kong’s copyright amendment history and the two failed attempts, Section 4.2 offers a brief description of the rise of the contract override issue and its controversies in copyright amendment. The chapter suggests that, sharing with previous controversies, the contract override issue situates the debates around one of the fundamental individual rights, i.e. the freedom of contract. Section 4.3 of the chapter introduces a critical examination of copyright’s nature as embodying private rights and the intimacy between property rights and contract freedom in defense of fundamental individual rights. The chapter’s analysis reveals that, while the fact that individual freedom expressed in property rights and achieved through contracts lends constitutional support to a contract override mechanism, neither is private property absolute, nor is freedom of contract unlimited. The inbuilt limitation on property rights and contract freedom offers possible checks and balances against private rights for public considerations, which both indicate the copyright imperative. Further examination of the negotiation process and the circumstances of the conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) indicate that the obligation to balance rights and obligations is imperative under the framework of the World Trade Organization (WTO). The chapter concludes with Section 4.4 with a call for a better understanding of the contract override issue in copyright amendment to ensure an ontological balance of rights and obligations in constructing a modern copyright regime for the digital age.

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4.2 Copyright Amendment and the Rise of the Contract Override Issue 4.2.1 Hong Kong Public’s Decade-long Free Speech Resentment As has been shown in Chapters 2 and 3 above, the general public’s free speech resentment for copyright digital reform in Hong Kong has always dominated the debates of copyright amendment in both the failures of the 2011 and 2014 Bills. Hong Kong’s current Copyright Ordinance (Cap 528) was modelled on the UK’s Copyright, Designs and Patent Act (CDPA) 1988 and enacted in 1997. Since then, there have been seven Amendments, adapting the copyright regime in response to the social and technological development reflected in the tension between the claims of copyright holders and the interests of the public in the analogue era.12 To follow the copyright regime’s paradigm shift from the analogue to digital age led by WIPO’s two 1996 Internet Treaties and the US 1998 Digital Millennium Copyright Act (DMCA), Hong Kong started a public consultation on “Copyright Protection in the Digital Environment” in 200613 and signed the WIPO Internet Treaties in 2008. The Copyright (Amendment) Bill 2011 (the 2011 Bill) was introduced into LegCo in June 2011, which was a fairly balanced and satisfactory draft. The 2011 Bill’s provision of the all-embracing and exclusive right of communication to right holders and the criminalization of unauthorized communication, however, triggered intense public debates, which eventually led to free speech-dominated controversies throughout the two rounds of amendment attempts. When the 2011 Bill was introduced into the LegCo reading, the focus of the amendment was somewhat distorted. Hong Kong’s public criticism on the Bill was very much concentrated on the Bill’s potential negative effects on free speech. As no explicit exemption for digital parody of copyright works was found in the amendment, the Bill was considered, by the pan-democratic parties in particular, as against freedom of speech and endangering internet freedom in Hong Kong. The pan-democratic activists and supporters boycotted the reading of the Bill in LegCo and denigrated the Bill as being “Cyberspace Article 23.”14 The “Article 23” metaphor obscured the real focus of the copyright amendment and drew public attention from the balance of interests between the copyright triangle relationships to the tension between the Administration and general public as copyright users in relation to freedom of speech. The 2011 Bill came to an end upon the expiry of the then LegCo’s term in July 2012. Learning from the failure of the 2011 Bill, the Hong Kong Government started a new round of consultation on parody treatment in 2013,15 and the views gathered were quite polarized. While copyright users enthusiastically champion complete freedom of expression and “secondary creations,” many copyright owners see no need for parody exception and emphasize the urgent need for an update of the copyright regime in the digital environment. In the Copyright (Amendment) Bill 2014 (the 2014 Bill) introduced to LegCo in June 2014, a new fair dealing exception that covers works for the purpose of “parody, satire, caricature or pastiche” was successfully introduced to calm the free speech sentiment.16 According to

96 The Origin of Copyright the Government, parodies “are common means” of the public’s expression, and may “promote freedom of expression” and “encourage creativity.”17 From the 2011 Bill to the 2014 Bill, the parody copyright exception was finally incorporated into the copyright amendment for the purpose of balancing copyright protection with freedom of speech. Unfortunately, the 2014 Bill’s introduction of the parody exception did not end the controversies of the tension between copyright protection and free speech. Rather, it reintroduced the confrontation between the Administration and copyright users to a new forum in a broader context, and the real focus of the copyright amendment for the digital age remained overlooked. During the Government’s 2013 public consultation on parody treatment, many of its supporters advocated introducing a secondary creation copyright exception.18 The Hong Kong Government, however, refused to use the term “secondary creation” and rather took on the term “parody” for the consultation exercise, indicating a clear “reservation in adopting a generic concept of UGC as a subject matter for copyright exception” in this round of review. The reasons of Government’s refusal of the UGC exception were threefold: 1) the concept is “vague and undefined,” and thus UGC exception might not meet TRIPS’ three-step test; 2) as it goes beyond the newly expanded fair dealing exceptions, UGC exception is hard to justify; and 3) the UGC concept is “unsettled and developing,” and only Canada has adopted it in copyright legislation.19 The Government, however, also committed itself to “continue to monitor closely overseas developments in copyright protection as part of our consideration in identifying and resolving further issues for any future legislative update.”20 Swinging between parody exception and UGC exception, the 2014 Bill adopted the parody exception yet rejected the UGC exception proposal. The 2014 Bill presented a tiny breakthrough in the current ban on secondary creation with only limited accommodation to those uses “for the purpose of parody, satire, caricature or pastiche.” To the extent that copyright exceptions for secondary creation will only be possible for parody, the copyright regime presents itself as the end instead of the beginning of creations.21 After months of filibustering at the LegCo debate stage, the Government declared in March 2016 that it was abandoning the Bill, and no consultation would take place in the then Administration’s remaining term until 2017.22 As the then LegCo’s term expired in 2016 without any further new discussion so far, the copyright amendment stood no chance of success in the near future. Building on the examination of the topics in Chapters 2 and 3, this section’s sketch of Hong Kong’s failure of copyright amendments attempted parody and UGC exceptions reveals a significant feature of amendment’s authorship-readership-entrepreneurship ontological complexity. While “Cyberspace Article 23” discussion introducing parody exception reveals the author-user ontological dynamics, the UGC debate denotes an ontological tension between existing author and user in the capacity of future author of secondary creations. Both discussions were unfortunately framed in a contending relationship between copyright vs free speech, although copyright and free speech share with each other an ontological interdependence, defending individual autonomy against government intrusion. More importantly, neither discussion touched

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entrepreneurship; even UGC was put in a free speech discussion context, and relevance with “independent economic significance” was removed, owing to Hong Kong’s problematic three-step test philosophy.23 This reflects the reality that copyright amendment discussions have been distorted and overtaken by the distrust between the Hong Kong Government and general public as copyright users. Concern about negative impacts on free speech remained the key issue in considering both parody and UGC exceptions, yet with a different treatment. To be fair, the Bill 2011 introduced at the very beginning of Hong Kong’s digital reform indeed was a fairly balanced and satisfactory draft. The purpose of the amendment as set out in the 2006 consultation was to better adapt copyright protection to the advances of information technology and the development of broadband infrastructure in the digital era. Key issues included the introduction of an “all embracing right of communication,” online service providers’ liability and the mechanism facilitating civil actions against internet piracy.24 With balanced attention paid to right holders (as seen in the exclusive right of communication), users (as seen in various exceptions) and entrepreneurs (as seen in safe harbor), the amendment was obviously aiming at the balance of interests in the classical copyright triangle of relationships between creators, entrepreneurs, and users.25 The goal of the balance among authorship, readership, and entrepreneurship was overshadowed by free speech rhetoric and caused the failure of both the 2011 and 2014 Bills. During this decade of copyright amendment, however, technology has rapidly changed the environment of the copyright dynamics, while the role of the players between author vs reader has also been quite different in the digital environment of a participative web. At the latter stage of the 2014 Bill’s LegCo debates, issues of concern extended beyond the UGC issue to cover issues of fair use and contract override.26 The rise of the contract override issue, although somewhat continuing this focus-distortion of copyright amendment, still reveals a deeply embedded theoretical concern as to copyright’s proprietary interest and the implications on the ontological complexity between authorship, readership and entrepreneurship in the neo copyright age. 4.2.2 Contract Override and Entrepreneurship’s Rising Market Concerns Contract override, in the context of copyright amendment, refers to “the practice of parties entering into contractual agreements which exclude or limit the operation of certain statutory copyright exceptions.”27 A contract override ban that protects copyright exceptions from contracting out was incorporated into the UK’s CDPA 1988 in several copyright amendments. In 2014, through various Statutory Instruments made by the Secretary of State in relation to the European Communities Act 1972, in addition to adding new copyright exceptions to “disability,” “quotation and parody,” and “personal copies for private use,” the new provisions also specify that, to the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of the provisions for exceptions, would not infringe copyright, that term is unenforceable.28 Accordingly, any contractual restriction by a copyright holder on a person under a contract might not now be enforceable if a restricted use falls within the newly introduced exceptions under the CDPA 1988.

98 The Origin of Copyright Whether to protect copyright exceptions from override by contract or not was a hotly debated issue during the public consultation leading to the UK’s amendment of the CDPA 1988. On the one hand, copyright users, individual or institutional, generally support the contract override ban owing to the concern that contract override “could render exceptions in general meaningless” and can erode “the vital balance between the monopoly rights of the copyright owner and the need to protect public policy considerations.”29 Practical concerns as to contract override’s allowing exceptional circumvention in practice, by offering lower-level access and copying rights in contracts with publishers, as well as the resources implication and practicality of negotiating individual contracts when administering large volumes of contracts, had also been raised.30 On the other hand, strong opposition to the contract override ban generally came from right holders who insisted that “contractual freedom provided sufficient scope for users to negotiate or to choose not to accept terms” and thus “could provide greater clarity and certainty for users;” and the ban “would challenge established principles of contract” and also “could lead to an increase in disputes and litigation.”31 The UK’s success in introducing the new copyright exceptions and the contract override ban stirred up polarized debates on relevant issues in Hong Kong. Some copyright user groups in Hong Kong expressed strong interest regarding the contract override provisions. The Hong Kong University Students’ Union, for example, “demands” that Hong Kong’s legislature, the LegCo, “agree to the amendments of the addition of the ‘contract override’ clause, ‘fair use’ terms and the ‘user generated content’ protection.”32 Another high-profile group representing civic copyright users, the Copyrights and Derivative Works Alliance, provided a detailed submission to LegCo and strongly expressed its concerns about the lack of a contract override mechanism.33 By reference to UK’s successful incorporation of the contract override ban, the Alliance expressed “serious concern” about the absence of a contract override ban and argued that: the interest of the user as well as the general public protected by statutory copyright exceptions, including the proposed fair dealing exceptions, will be prejudiced by contractual arrangements which is usually imposed by copyright owners in the terms and conditions to override the exemptions under the law.34 Moreover, the Alliance argued that the Hong Kong Government is under an international obligation to protect citizens’ social and cultural rights “so that the exemption of the civil liability under the [Copyright (Amendment)] Bill will not be undermined by the private contractual arrangement.”35 The contract override issue was brought up and introduced during the LegCo deliberation stage by a LegCo Member building on the International Federation of the Phonographic Industry submission to the Bills Committee dated 18 February 2015.36 It was proposed to be included as a new section that, “[a] term of contract is unenforceable to the extent that it purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright.”37 There are, however, also some individuals and institutions that enthusiastically advocate the maintenance of the contract override mechanism. The Hong Kong

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Copyright Alliance suggested that a contract override provision “may affect freedom of contract and have a deep and extensive impact on operations of businesses whose structures and relationships depend on copyright law for their foundation.” 38 With a clear emphasis on business efficiency and contract freedom, on which values entrepreneurship fundamentally rely upon, some of the individual supporters argued that: “Contract override” provides commercial flexibility to both copyright holders and people who engage with the former. Business efficiency demands certain rights and freedoms to be contracted out; freedom of expression is no exception. … Similarly, parties in a copyright transaction can agree not to exercise certain statutory rights.39 Supporters also include two legal professional bodies in Hong Kong. The Law Society of Hong Kong is fairly cautious about introducing the contract override ban and argued that “there is no empirical study or data about the effects of disallowing contract override or about the differences between countries having imperative exceptions and countries where freedom of contract prevails.”40 It therefore “remains to be reviewed and examined whether any contract override provisions should [and to what extent] be made.”41 “Unless there is strong justification,” according to the Law Society, “the freedom of parties to negotiate their contracts should not be interfered with lightly.”42 Similarly, the Hong Kong Bar Association suggested that there is neither “any empirical evidence of injustice” nor can a “compelling case [can] be presented” to support the contract override ban.43 The contract override ban, according to the Hong Kong Bar Association, “would harm the deeply-rooted spirit of freedom and sanctity of contract,” and “risks reducing the flexibility of the copyright regime, and the scope to develop new business models for distributing copyright materials.”44 It should be noted that, although international practice about the contract override issue varies, there is certain acceptance of the contract override ban. In addition to the UK, the Australia Copyright Act currently contains similar restrictions in relation to the reproduction of computer programs and is recommended to extend its coverage to specific libraries and archives exceptions.45 While the EU limits contract override ban to the domain of software and databases, and New Zealand allows contract override, except in those areas restricted under the Copyright Act 1994, Canada and Singapore have no relevant statutory provisions.46 The Hong Kong Government appeared to be quite prudent on the issue. The Administration emphasized that “freedom of contract plays a vital role in Hong Kong’s free-market economy and it remains a cornerstone in the law of contract,” and allowing contract override “not only provides [the] flexibility and legal certainty that the parties desire in specific circumstances, but also facilitates the efficient and competitive exploitation of copyright works to the benefits of both owners and users of copyright works.”47 Given the absence of empirical studies of the potential harms of contract override and the existence of the judicial intervention remedies through the Unconscionable Contracts Ordinance, if needed, the Government

100 The Origin of Copyright considered it is not prudent to “rush into legislating contract override provisions” without a comprehensive review.48

4.3 Property Rights, Contract Freedom and Copyright Exceptions 4.3.1 Property Rights & Contract Freedom: the Constitutional Significance As rightly pointed out by Australian Law Reform Commission, the contract override question raises fundamental questions about the objectives of copyright law, the nature of right holders’ exclusive rights and exceptions, and the respective roles of copyright law, contract law, and other policy.49 The critical analysis in this section starts with the nature of right holders’ exclusive rights under copyright law and its ontological implications. In general, copyright in particular or intellectual property in general are private rights. Under the Copyright Ordinance, copyright “is a property right” in the designated descriptions of work in accordance with law.50 Indeed, a patent or a registered design is personal property that “may be transferred, created or granted” in accordance with law.51 This is indeed in line with the TRIPS Agreement under the WTO, of which Hong Kong is one of the founding members. According to TRIPS, WTO members recognize that “intellectual property rights are private rights.”52 As a WTO Panel suggested, the “common feature” of the Sections in Part III of the TRIPS Agreement in apportioning the responsibility of initiating various protection procedures on private right holders, for example, indicates well “the nature of intellectual property rights as private rights.”53 Moreover, recognizing intellectual property rights (IPR) as private rights not only shifts the responsibility of enforcement to private right holders from the governments, but also at the same time creates a preventative effect against unwanted government actions. This is because the private rights nature means that limits are set on third parties and public authorities, preventing them from engaging in illegitimate infringement, which also reveals the negative right nature of IPRs. As a WTO Panel pointed out, the trademark right conferred under Article 16.1 is an exclusive right that belongs to the right owner “who may exercise it to prevent certain uses by ‘all third parties’ not having the owner’s consent,”54 and the TRIPS provision “only provides for a negative right to prevent all third parties from using signs in certain circumstances.”55 Accordingly, “the TRIPS Agreement does not generally provide for the grant of positive rights to exploit or use certain subject matter, but rather provides for the grant of negative rights to prevent certain acts.”56 As private and negative rights, intellectual property’s protection and enforcement generally depend on right holders’ will and private actions rather than public authorities’ ex officio action. Recognizing copyright in particular or intellectual property in general as private rights and negative rights has fundamental significance. Theoretically, this recognition gives copyright protection constitutional support, as private property bears fundamental significance to our social progress.57 The Hong Kong Basic Law states clearly that the Government “shall protect the right of

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private ownership of property” and “protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property” in accordance with law.58 The right to private property is indeed the foundation of individual freedoms, as “freedom of individual decision is made possible by delimiting distinct individual rights.”59 Private property is thus argued to be the precondition of the development of liberal, democratic social political institutions.60 Moreover, it is the free movement of private property through the system of contract that marks “the beginning of civilization,” as private property “is the heart of the morals of any advanced civilization,” and its prior development “is indispensable for the development of trading.”61 At the centre of copyright protection and contract override debates are the dynamics between property, freedom and contract. The dynamics between private property, individual freedom, and the system of contract indicate that contract is indeed a great social institution without which the evolution of human civilization is not even possible. First of all, under classical property theories, individual freedom depends on and manifests itself through private property ownership; as Hegel argued, the wholly abstract and undetermined “will” as the “basis of right” needs to be expressed through property as “the first embodiment of freedom.”62 The same holds true for another classic property theorist, Locke, who suggested that it is private property ownership that separates individuals from the common and which gives birth to the autonomous self.63 Second, individual freedom gains momentum in private property only when property comes alive through alienation by contract. When private property ownership separates the self from others and the public, through which process the individual gains independence and autonomy, the self becomes self-sufficient and alienated from others and the public.64 The modifications of property, therefore, are determined in the course of the free will’s relation to the thing from taking possession, to use, then to alienation, upon which the free will that was put into the external thing is “back from the thing into itself.”65 While taking possession separates property from others, alienation—through either will between generations or contract within a given generation—returns property to others, the public.66 Therefore, as Hegel indicates, private property also has “a bearing on the anticipated relation to others.”67 As the fundamental mechanism of property alienation, contract connects individuals with private property and constructs modern society through the market mechanism, thus bearing fundamental significance for individual freedom.68 Finally, and most importantly, property and contract, which are intertwined with each other in individual freedom’s manifestation and attainment, are the ends and means of individual freedom and share with each other an imperative ontological interdependence. As property comes alive only in contract, then contract, in particular freedom of contract, is indeed not only necessary, but also imperative for promoting individual freedom. According to Hegel, contract brings the existence of property beyond “mere things” to something external that “contains the moment of a will” to two free individuals who for the very first time both become true owners by alienating their property through contract.69 The establishment of this contractual relationship has fundamental importance to individual freedom, as it not

102 The Origin of Copyright only brings the property of the given individual to life, but also puts an end to the self-alienation of the self by linking him/her back to a social relationship.70 Therefore, freedom of contract goes beyond civil law to be recognized as a basic constitutional right.71 Indeed, the early years of legal history were a process of movement “from Status to Contract.”72 The process of the development of freedom of contract has been the result of efforts minimizing the functions of the state in favor of individuals’ freedom.73 Similar to private property’s negative right effects excluding third-party or public interference, freedom of contract has an explicit effect of defending individual autonomy against interference from others. The power of freedom of contract, as Kessler suggested, lies in that it “means that the state has no monopoly in the creation of law,” and individual citizens gain “a piece of sovereignty which enables them to participate constantly in the law making process,” as “[t]he consent of contracting parties creates law also.”74 Thus, “[a]greements lawfully entered into take the place of the law for those who have made them.”75 Freedom of contract, therefore, is both the means and the ends to individual freedom.76 As property rights and freedom of contract are both ends and means of individual freedom, they are both private and negative in nature as fundamental freedom of individuals. Under the EU Charter of Fundamental Rights, both “freedom to conduct a business” and “right to property” are recognized as fundamental freedoms.77 In the European Union’s context, the “freedom to conduct a business” under Article 16 “covers the freedom to exercise an economic or commercial activity, the freedom of contract and free competition.”78 Moreover, the exercise of freedom of contract and the protection of property rights are not in conflict. In DR and TV2 Danmark, the European Court of Justice stated that the Court favors an approach that can ensure users’ “greater enjoyment” of the freedom of contact yet “at the same time not adversely affecting the substance of copyright.”79 Freedom of contract, as part of the fundamental freedom of individuals, is neither subordinate nor superior to property rights in its significance for individual freedom. The recognition of the personal property attributes and the nature of negative rights provides a solid constitutional support to copyright protection. Any unlawful limitation on copyrights constitutes a prima facie violation of individuals’ contract freedom and goes against the sanctity of private property, which might potentially undermine the constitutional foundation of modern society. The negative right nature of IPRs certainly lends solid jurisprudential support to copyright holders in preventing other external interferences—including, of course, government interference—unless copyright holders are willing to do so through contract activities. Moreover, the intimacy between property and contract and its significance to individual freedom provides solid constitutional support to both copyright protection and freedom of contract. Does it, however, also imply that a successfully established exception against copyright should then not be overridden by freedom of contract? We are thus led to the sections next on the in-built limitation on property rights and contract freedom, as well as the nature of copyright exceptions as international obligations under TRIPS.

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4.3.2 Property Rights and Contract Freedom: the In-built Limitation Although recognizing IPRs as private rights lends solid support to the constitutional significance of IPRs in general or copyrights in particular, it does not mean that IPRs are unlimited, but rather that they are subject to checks and balances from the public interest and the needs of others. Indeed, traditional property theory has an in-built limitation on the sanctity of private property. Both Lockean and Hegelian property theories implicitly or explicitly imply limitations on private property rights. The Lockean “common law of nature,” for example, indicates a clear limit on property rights and sets the measure of property nature by the extent of people’s labor and the convenience of their life.80 As whatever is beyond the limit set by the “common law of nature” is more than the owner’s share and “belongs to others,”81 the limit of private property rights therefore comes from the needs of others. For Hegel, the modifications of property are determined in the course of the free will’s relation to the thing from “taking possession,” to “use,” then to “alienation,” upon which the free will that was put into the external thing is “back from the thing into itself.”82 Upon property alienation, the previous owner gains true freedom, as the self does not depend on the property any more; and the new owner attains selfrealization through new ownership. Therefore, private property’s “bearing on the anticipated relation to others”83 sets a limit, although in a different sense, on private property rights. This Hegelian modification of property in relation to others to some extent endorses the Lockean implicit limitation of private property rights by the needs of others.84 Neither is the freedom of contract, although imperative to private property rights, absolute and unlimited. Freedom of contract, as the manifestation of individual freedom through property ownership, has its own path of historical development, and its development and the movement “from status to contract” might not always be linear and straightforward. According to Pond, “[t]he first extended discussion of the right of free contract as a fundamental natural right is in Spencer’s Justice, written in 1886.”85 As Pond pointed out, the pursuit of freedom of contract was born together with the establishment of the laissez-faire concept, at the dawn of the Industrial Revolution, when the rise of capitalism was intertwined with the flourishing of freedom of contract.86 Indeed, the Victorian belief in the sanctity of contract, laissez-faire individualism, and natural law theory are closely interconnected.87 Around the turn of the twentieth century, we see the development of large-scale enterprise and the predominant use of standardized contracts in business. With the “decline of the free enterprise system” following the shift from “competitive capitalism towards monopoly,” freedom of contract became “a one-sided privilege,” as law protected the unequal distribution of property.88 Therefore, “the fact that the belief in freedom of contract has remained one of the firmest axioms in the whole fabric of the social philosophy of our culture” has greatly facilitated the reverse of the historical evolution of the law “from status to contract.”89 The rise of the idea of the modern welfare state presented a way to check and balance this extreme development of laissez-faire individualism and the Victorian belief in the sanctity of contract therein.90 Common law’s advent of the anticipatory breach doctrine in the

104 The Origin of Copyright nineteenth century, according to Corbin, which transcended traditional theory that a person could only be bound by his own consensual promise, is a good example.91 As social values have changed following the change of social conditions, according to Corbin, contract rights and duties are determined more and more by “the needs of the all” instead of the contractors only, and “the line where personal privilege ceases and legal duty begins is now more greatly determined not by the will of the individual for himself, but by the desires and wills of the many.”92 Therefore, the freedom of contract that underpins the contract override mechanism will be under the pressure of change in recognition of “the needs of the all.” The development of the modern modification of the Victorian belief in the sanctity of contract sheds light on this issue. In the context of discussing the contrast between Romantic belief in authorship vs Anglo-American skepticism towards moral rights, Cornish et. al. revealed the Victorian tradition’s reluctance “to subject the bargaining’s of the marketplace to higher dictates of good faith, propriety and fairness.”93 This Victorian belief in sanctity of contract, however, “has today been to some degree modified by broader notions of fiduciary responsibility, duties of care and unconscionability.”94 In fact, the welfare state idea that limits the extreme laissez-faire individualism, the qualification of “the needs of the all” over traditional consensualism, and the modern constraint of conscionableness and fairness over the Victorian belief of the sanctity of contract are pointing in the same direction—the inevitable limitation of freedom of contract. Therefore, although copyright’s private right nature and the institutional significance of contract freedom lend solid support to the contract override mechanism, neither is personal property absolute, nor is contract freedom unlimited. The sanctity of personal property is qualified by the Lockean “common law of nature” in consideration of the needs of others or limited by “a bearing on the anticipated relation to others” in the Hegelian term. The freedom of contract that underpins the binding force of individual consensual promise has also been qualified and gradually determined more and more by “the needs of the all” other than contracting parties only. Indeed, in addition to its recognition of IPRs as private and negative rights, the TRIPS Agreement also emphasizes IPRs’ public implications. TRIPS’ philosophy is to achieve a balance between rights and obligations in IPRs protection: The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.95 For the purpose of balancing rights and obligations, the TRIPS Agreement allows members to adopt measures “necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development,” and measures to prevent right holders’ abuse of IPRs or anti-competition practices, as long as these measures are consistent with

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TRIPS. Also, for the purpose of balancing rights with obligations, the TRIPS Agreement provides various exceptions and limitations to the exclusive rights conferred by a copyright, trademark, industrial design, or patent respectively.97 As for copyright, for example, exceptions are available under TRIPS, as long as they satisfy the three-step test of limiting to “certain special cases,” no conflict with a “normal exploitation,” and no “unreasonable prejudice” against the legitimate interests of the right holder.98 This so-called three-step test requirement for copyright exceptions has been well established internationally and successfully incorporated into the Copyright Ordinance: In determining whether an act specified in this Division may be done in relation to a copyright work notwithstanding the subsistence of copyright, the primary consideration is that the act does not conflict with a normal exploitation of the work by the copyright owner and does not unreasonably prejudice the legitimate interests of the copyright owner.99 Therefore, IPRs are not unlimited in TRIPS, and public interests and social concerns can provide legitimate limitations on the exploitation of IPRs. In China–Intellectual Property Rights under the context of discussion of the tension between government’s sovereign exception and exercise of private IPRs, the Panel spelt out WTO’s conformity to WIPO’s interpretation of the sovereign exception that authors may exercise their copyrights “only if that exercise does not conflict with public order.”100 The TRIPS philosophy of the balance of rights and obligations certainly justifies the possible limitation on copyright and right holder’s freedom of contract by the technology users’ interests of social and economic welfare facilitation, which might reasonably include public interest considerations. From a copyright ontological integrity perspective, the balance of rights and obligations reflects deeply the mutual implications between copyright authorship, readership, and entrepreneurship. In fact, in its common usage, the word “balance” as a noun means “a situation in which different elements are equal or in the correct proportions.”101 Therefore, private IPRs should neither override the public interest or social economic welfare, nor should social and economic welfare considerations triumph over private IPRs. Rather, private IPRs and social and economic welfare should coexist and should even be mutually complementary with one other. If this interpretation is correct, when a copyright exception has been legally established to balance a certain copyright, it may not be overridden through contract by the right holder. Otherwise, the balance between rights and obligations will then be lost. This leads us to the question of the nature of the TRIPS obligation of balancing rights and obligations in intellectual property protection. 4.3.3 Exceptions’ Onto-Epistemological Balance of Rights and Obligations Therefore, property and contracts not only serve as the ends and the means of individual freedom with ontological interdependence, but also both are limited,

106 The Origin of Copyright together forming an integral ontological whole. While private and negative rights recognition lends constitutional support to a contract override mechanism building on contract freedom as fundamental individual rights, an in-built limitation on property rights and contract freedom warrants copyright’s consideration of “the needs of the all.” According to TRIPS, members’ copyright protection and enforcement “should contribute to” a “balance of rights and obligations.” As long as WTO consistency is guaranteed, members may adopt measures necessary to promote “the public interest in sectors of vital importance to their socio-economic and technological development” and to prevent right holders’ abuse of IPRs. The TRIPS Agreement, however, provides no text clearly explaining what the nature of the objective of balancing rights and obligation is and whether contract freedom should override copyright exceptions. Given the absence of any TRIPS text on the issue, a close look at “the circumstances of treaty conclusion” would certainly be the “supplementary means of interpretation” under the 1969 Vienna Convention on the Law of Treaties (VCLT 1969) to clarify the issue.102 Before the introduction of IPRs into the international trading framework through the TRIPS Agreement, intellectual property was still the domain of specialists and intellectual property right producers.103 TRIPS’ incorporation of intellectual property into the international trading system “elicited great concern over its pervasive role in people’s lives and in society in general.”104 TRIPS negotiations started in September 1986, at a critical moment “when the negotiations between developed and lessdeveloped countries over the revision of the Paris Convention were deadlocked at WIPO.”105 Before the Uruguay Round negotiation, in the 1970s in particular, developing countries focused very much on establishing new rules on a New International Economic Order (NIEO) that depended on greater access to technology protected by IPRs in developed countries. Developed countries, however, have been very much concerned with the WIPO system’s failure to provide effective protections to the interests of their technology-based and expressive industries.106As one of the principal “new area” negotiations in the Uruguay Round, the incorporation of IPRs into international trade was quite controversial, and opinions were divided between developing and developed countries.107 TRIPS negotiations clearly reflect the contentions around intellectual property protection between developed and developing countries. While the draft legal text from developed countries including the European Communities, the USA, Japan, Switzerland, and Australia—the so-called “A” text—emphasizes the domestic enforcement and the applicability of GATT dispute settlement mechanism to TRIPS disputes, around a dozen developing countries proposed another legal text—the so-called “B” text—with a focus on maintaining flexibility to implement economic and social development objectives.108 At the very beginning of the negotiations, developed countries and a few developing countries were only expecting a Tokyo Round-type “code” to be incorporated into the GATT framework. The US proposal submitted during the negotiation in 1988, for example, suggests as one of the objectives to “[e]ncourage non-signatory governments to adopt and enforce the agreed standards for protection of intellectual property and join the [GATT] agreement.”109 In relation to revision and amendment of the

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GATT, the USA suggested an open mechanism that is able to accommodate future consensus on improved protection for new forms of technology and creativity.110 India, however, submitted a detailed paper indicating a developing country perspective in sharp contrast with the US proposal.111 India suggested that only the restrictive and anti-competitive practices of IPR owners “can be considered to be trade-related because they alone distort or impede international trade.”112 India therefore suggested that, according to the mandates from the Trade Negotiation Committee, the negotiation on trade-related aspects of IPRs “should be governed by the concerns and public policy objectives underlying the national systems for the protection of intellectual property, including developmental and technological objectives.”113 Therefore, India argued that “[i]t would … not be appropriate to establish within the framework of the General Agreement on Tariffs and Trade any new rules and disciplines pertaining to standards and principles concerning the availability, scope and use of intellectual property rights.”114 When it was clear that the significance of TRIPS negotiations would certainly go beyond counterfeiting and piracy matters, the developing countries insisted on including the issue of anticompetitive practices into the TRIPS framework.115 Together with clear, objective, and detailed measures, Peru’s communication, for example, expressed the common concerns of developing countries and suggested that all countries should be able to adjust an intellectual property protection system to facilitate national development and technology transfer.116 Developed countries with established rules for the control of IPR-related anticompetitive practices, however, indicated no interest in incorporating the competition framework in the TRIPS context. Eventually, owing to the threat of sanctions and the implicit dismantling of the GATT, as well as concessions offered by developed countries in other areas such as agriculture and textiles, “the resistance of developing countries was overcome.”117 The final result of the Uruguay Round negotiation mirrored the “A” text and “embodied norms that had been accepted by industrialized countries,” and developing countries’ concerns “were reflected in large part in two provisions—Articles 7 and 8 [of the TRIPS Agreement].”118 Developing countries’ concerns about the control of IPRs’ abuses and the “pernicious effects” of some contractual practices—that were first reflected in the 1990 Anell Draft119—eventually became Articles 8.2 and 40 of the TRIPS Agreement.120 The negotiation of the compulsory licensing provision Article 31 in TRIPS perfectly reflects this dynamics. Before TRIPS, compulsory licensing was indeed a common practice internationally.121 The Paris Convention, for example, explicitly indicates that each country “shall have the right to take legislative measures providing for the grant of compulsory licenses.”122 The negotiation on revising the Paris Convention broke down in 1982, “in significant part because of competing demands concerning compulsory licensing” between developing countries’ NIEO demands for technology sharing and developed countries’ demands for stronger protection of proprietary interests of patents.123 India’s submission in 1989, for example, suggested a compulsory licensing regime that covers licensing for non-working, and licenses of rights relating to food, medicine, and agricultural chemicals.124 It is worth noting that the Paris Convention expressly allowing compulsory licensing of patents failed to work locally.125 However, the final result of the compulsory licensing negotiation

108 The Origin of Copyright reflected developed countries’ interests, and the compulsory licensing on grounds of non-working was taken out.126 Moreover, the principles expressed in Article 8.1 above serve the “general exceptions” function in the TRIPS Agreement, which enables members policy flexibility in managing IPRs for public interest promotion.127 Accordingly, to “promote public interest” in vital sectors would be one of the justifications qualifying IPRs, as long as it were in a manner consistent with the TRIPS Agreement. For the issue of patentable subject matter, for example, the TRIPS Agreement thus allows members to exclude certain inventions from patentability for the purpose of offering protection to “human, animal or plant life or health.”128 Therefore, the objectives and principles as expressed in Articles 7 and 8.1 clearly accommodate the interests of public concern, and should not be interpreted lightly.129 In fact, it was also reiterated in the 2001 Doha Declaration, that “each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.”130 The WTO Panel’s practice also confirmed this. In its discussion of the limiting conditions of adopting the patent right exceptions prescribed in Article 30 of the TRIPS Agreement, the Panel in Canada–Pharmaceutical Patents stated that, when examining the limiting conditions, “[b]oth the goals and the limitations stated in Articles 7 and 8.1 must obviously be borne in mind.”131 The lengthy discussion of TRIPS negotiations and conclusion carries significant weight in our analysis of the nature of members’ obligation of balancing private rights and public interests under TRIPS, as the circumstances of the TRIPS conclusion provides an ideal “supplementary mean of interpretation” under VCLT 1969.132 The philosophy of balancing rights and obligations indeed mirrors the tension between developing countries’ NIEO demands of technology sharing and antitrust control of IPRs abuses vs developed countries’ demand for stronger protection of proprietary interests of patents. The mutual concession between developing and developed countries serving as the foundation of TRIPS conclusion indicates that the balance between rights and obligations is indeed imperative rather than just for convenience. For example, certain anticompetitive contractual practices are qualified and prohibited under TRIPS, if these contractual practices have adverse effects on trade and impede technology transfer.133 This obligation of controlling certain IPRs contractual practices is indeed very closely related to the objectives and principles laid down in Articles 7 and 8 of TRIPS, to ease members’ concerns about anticompetitive contractual abuses of IPRs.134 Therefore, members indeed bear the obligation of balancing rights and obligations in their management of IPRs contractual activities. So copyright exceptions limiting private rights—be it property rights or contract freedom—for the balance of rights and obligations should not be subject to contract override by individual right holders.

4.4 Conclusion: Entrepreneurship and Copyright Ontological Integrity Given continuing copyright ontological complexity between author and user, and author and future UGC authors, the contract override discussion in Chapter 4

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offers a critical examination of the tension between copyright and freedom of contract and its implications for copyright ontology. As the analysis in the chapter showed, the “property right” recognition undoubtedly lends constitutional support to copyright protection, because private property as a manifestation of individual freedom serves the foundation of our social legal system. The freedom of contract, as the means of individual freedom’s manifestation, gains its constitutional significance in “holding modern society together.” The contract override mechanism—in particular its market efficiency and freedom on which copyright entrepreneurship really relies—undoubtedly has its theoretical foundation. However, neither property right nor freedom of contract is absolute. As revealed in the chapter’s analysis, while classical property theory has an in-built limitation on private property from the anticipation of others, the freedom of contract that was historically intertwined with Victorian laissez-faire individualism and the sanctity of private property has now been gradually qualified by the consideration of “the needs of all.” According to TRIPS, members’ copyright protection and enforcement “should contribute to” a “balance of rights and obligations”—an intellectual property philosophy that fits well with the copyright ontological interdependence between authorship, readership, and entrepreneurship. A further detailed examination of the circumstances of TRIPS’ conclusion revealed that, to balance the rights and obligations for consideration of public interest and social development is imperative under TRIPS, an international obligation subject to no derogation. Given the fact that contract freedom serves as the means for individual freedom to be manifested in private property rights, a limitation on private rights for the balance of rights and obligations is indeed imperative under TRIPS. Allowing contract overrides those copyright exceptions designed to limit private rights for the balance of rights and obligations finds no theoretical support and is indeed against copyright ontological integrity. Hong Kong’s effort to adapt the copyright regime for the digital age has been going on for more than a decade, since the 2006 public consultation. The failure of the 2011 Bill and the 2014 Bill certainly presented an unfortunate setback to the effort. During both attempts, concerns about individual rights—the right to free speech in particular—continued to be the focus of public attention, although what copyright protects includes fundamental individual rights and the original expression of individuals, to be precise. Moreover, the real focus of the ontological balance of interests between copyright authorship, readership, and entrepreneurship through copyright amendment has been obscured, and attention has been misplaced regarding the tension between the Government and the general public as copyright users in relation to freedom of speech. Although this might be due to Hong Kong’s general political atmosphere in recent years, it also has much to do with the theoretical confusion as to the nature of copyright, contract freedom, and international obligations. This theoretical confusion has led to the mis-confrontation of copyright with free speech in parody and UGC controversies and confronted contract freedom with copyright, although they are two sides of the same coin of individual freedom, and copyright ontological balance is thus buried, owing to confusion. Should the effort to amend the copyright regime for the digital age resume, the

110 The Origin of Copyright clarification of the nature of copyright, contract freedom, and international obligations with an emphasis on the ontological balance between copyright authorship, readership, and entrepreneurship must be the top priority.

Notes 1 An earlier version of this chapter has been published. Wenwei Guan, “Copyright v. Freedom of Contract: The ‘Contract Override’ Issue in Hong Kong’s Copyright Amendment.” 47(1), Hong Kong Law Journal (2017), 115–142. Revision of the article included in this book with permission from the publisher, Sweet & Maxwell Asia, ©2017. 2 The 1996 WIPO Copyright Treaty (WCT) and the 1996 WIPO Performances and Phonograms Treaty (WPPT) together are called the “Internet Treaties.” 3 The Commerce and Economic Development Bureau, Hong Kong, “Copyright Protection in the Digital Environment” (2006). Available at: www.info.gov.hk/a rchive/consult/2007/digital_copyright_e.pdf (accessed 22 December 2020). 4 Hong Kong Government, “Press Releases: Government to introduce Patents (Amendment) Bill 2015” (28 October 2015). Available at: www.info.gov.hk/gia/ general/201510/28/P201510280333.htm (accessed 22 December 2020). 5 CEDB Hong Kong, “Review of the Patent System in Hong Kong,” (LC Paper No. CB(1)534/12–13(05), February 2013), available at: www.legco.gov.hk/yr12-13/ english/panels/ci/papers/ci0219cb1-534-5-e.pdf (accessed 22 December 2020). 6 Hong Kong Legislative Council (LegCo, Hong Kong), “Patents (Amendment) Bill 2015” (introduced 30 October 2015). Available at: www.legco.gov.hk/yr15-16/ english/bills/b201510301.pdf (accessed 22 December 2020). 7 LegCo, Hong Kong, “Patents (Amendment) Ordinance 2016” (passed 2 June 2016). Available at: www.legco.gov.hk/yr15-16/english/ord/ord017-2016-e.pdf (accessed 22 December 2020). 8 Wenwei Guan, “When Copyrights Meet Human Rights: ‘Cyberspace Article 23’ and Hong Kong’s Copyright Protection in the Digital Era,” 42(3) Hong Kong Law Journal (2012), 785–808. 9 Wenwei Guan, “Fair Dealing Doctrine Caught between Parody & UGC Exceptions: Hong Kong’s 2014 Copyright Amendment and Beyond,” 45(3) Hong Kong Law Journal (2015), 719–742. 10 CEDB, Hong Kong, “The Administration’s response to issue raised at the meeting of 20 January and 7 May 2015” (June 2015). Available at: www.legco.gov.hk/yr13-14/eng lish/bc/bc106/papers/bc1060623cb4-1182-1-e.pdf (accessed 22 December 2020). 11 CEDB, Hong Kong, “The Government’s response to Members’ Proposed Committee Stage Amendments and Deputations’ Submissions,” LC Paper No. CB(4)61/15–16 (01), October 2015. Available at: LegCo site: www.legco.gov.hk/yr13-14/english/ bc/bc106/papers/bc1061019cb4-61-1-e.pdf (accessed 22 December 2020). 12 Guan, “When Copyrights Meet Human Rights,” 787–788. 13 CEDB, Hong Kong, “Copyright Protection in the Digital Environment.” 14 Guan, “When Copyrights Meet Human Rights,” 792–795. 15 CEDB, Hong Kong, “Treatment of Parody under the Copyright Regime Consultation Paper.” Available at: www.gov.hk/en/residents/government/publication/con sultation/docs/2013/Parody.pdf (accessed 22 December 2020). 16 Guan, “Fair Dealing Doctrine Caught between Parody & UGC Exceptions,” 719–720. 17 CEDB, Hong Kong, “Legislative Council Brief: Copyright (Amendment) Bill 2014” (CITB 07/09/17, 11 June 2014), para. 13. Available at: www.legco.gov.hk/ yr13-14/english/bills/brief/b201406131_brf.pdf (accessed 22 December 2020). 18 Ibid., Annex C.

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19 CEDB, Hong Kong, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” para. 19. 20 Ibid. 21 Guan, “Fair Dealing Doctrine Caught between Parody & UGC Exceptions,” 741–742. 22 Stuart Lau, “Five Reasons the Hong Kong Copyright Bill Failed: the political drama explained as Legislative Council debate ended over the controversial legislation,” South China Morning Post (4 March 2016), available at: www.scmp.com/news/hong-kong/p olitics/article/1920569/five-reasons-hong-kong-copyright-bill-failed (accessed 22 December 2020). 23 See discussion supra section 3.3.2. 24 CEDB, Hong Kong, “Copyright Protection in the Digital Environment: Executive Summary,” ii-iii. 25 W. Cornish, D. Llewelyn & T. Aplin, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (London: Sweet & Maxwell, 8th ed., 2013), 415. According to Cornish et. al., while industrial property tends to establish bi-polar relationships between right holder and user, “copyright sustains a triangle of relationships” between creators, entrepreneurs, and users. 26 CEDB, Hong Kong, “The Government’s response to Members’ Proposed Committee Stage Amendments and Deputations’ Submissions,” October 2015, paras. 1–9. See also, John Medeiros, “Real Purpose of the Copyright (Amendment) Bill Being Overlooked,” China Daily Asia (Friday 18 December 2015), available at: www.chinadailyasia.com/opinion/2015-12/18/content_15360395.html (accessed 22 December 2020). 27 CEDB, Hong Kong, “The Administration’s response to issue raised at the meeting of 20 January and 7 May 2015,” June 2015, para. 3. 28 The Copyright and Rights in Performances (Disability) Regulations 2014 (No. 1384, 19 May 2014), ss. 2(5) and 3; The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 (No. 2356, 26th August 2014), ss. 3(6), 4(4), and 5 (1); The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (No. 2361, 26 August 2014), ss. 3(1) and 3(3). 29 UK Government, “Consultation on Copyright: summary of responses” (June 2012), 27. Available at: www.gov.uk/government/consultations/copyright (accessed 22 December 2020). 30 Ibid. 31 Ibid. 32 The Hong Kong University Students’ Union, “Declaration on the Copyright (Amendment) Bill 2014: A tyranny might as well invoke laws and codes, Bad laws shall only lay a finger on us without notice.” Available at: www.facebook.com/hku supage/posts/974719159253249/ (accessed 22 December 2020). 33 LegCo, Hong Kong, “Further Submission on Copyright Amendment Bill 2014 by Copyrights and Derivative Works Alliance” (LC Paper No. CB(4)1257/14–15(03), 29 June 2015), paras. 6–11. Available at: www.legco.gov.hk/yr13-14/english/bc/ bc106/papers/bc1060706cb4-1257-3-e.pdf (accessed 22 December 2020). 34 Ibid., para. 8. 35 Ibid., paras. 9–11. The Alliance’s reference was made to Human Rights Council of the UN General Assembly’s “Report of the Special Rapporteur in the field of cultural rights” (A/HRC/28/57, 24 December 2014) which states that (para. 107), “States should ensure that exceptions and limitations cannot be waived by contract, or unduly impaired by technical measures of protection or online contracts in the digital environment.” 36 LegCo Hong Kong, “Letter from Hon Dennis KWOK dated 7 May 2015 on issues relating to the contract override provision” (LC Paper No. CB(4)944/14–15(02). Available at: www.legco.gov.hk/yr13-14/english/bc/bc106/papers/bc1060507cb4944-2-e.pdf (accessed 22 December 2020).

112 The Origin of Copyright 37 LegCo Hong Kong, “Committee Stage amendments to be moved by the Honourable Dennis KWOK” (LC Paper No. CB(4)1249/14–15(01), 2 July 2015), Available at: www.legco.gov.hk/yr13-14/chinese/bc/bc106/papers/bc1060706cb4-1249-1-ec.pdf (accessed 22 December 2020). 38 LegCo Hong Kong, “Submission from Hong Kong Copyright Alliance dated 18 February 2015” (LC Paper No. CB(4)551/14–15(01), 18 February 2015). Available at: www.legco.gov.hk/yr13-14/english/bc/bc106/papers/bc1060224cb4-551-1-e. pdf (accessed 22 December 2020). 39 Song Sio-chong, “A more rational approach to copyright bill urgently needed,” China Daily Asia (20 February 2016). Available at: www.chinadailyasia.com/op inion/2016-02/20/content_15387783.html (accessed 22 December 2020). 40 The Law Society of Hong Kong, “Position Paper on Copyright (Amendment) Bill 2014” (29 December 2015), para. 16. Available at: www.hklawsoc.org.hk/pub_e/ news/submissions/20151229.pdf (accessed 22 December 2020). 41 Ibid., para. 18. 42 Ibid., para. 16. 43 Hong Kong Bar Association, “Position Paper on the Copyright (Amendment) bill 2014 and the 3 Amendments Proposed by Certain LegCo Members” (17 February 2016), para. 18(vi). Available at: www.hkba.org/sites/default/files/Copyright%20%28Am endment%29%20Bill%202014%20…%20%28E%29.pdf (accessed 22 December 2020). 44 Ibid., paras. 18(ii) & (iv). 45 Australian Law Reform Commission (ALRC) of Australian Government, “Copyright and the Digital Economy: final report” (ALRC Report 122, November 2013), paras. 20.4–20.6, 20.23. Available at: www.alrc.gov.au/wp-content/uploads/2019/08/ final_report_alrc_122_2nd_december_2013_.pdf (accessed 22 December 2020). 46 CEDB, Hong Kong, “The Administration’s response to issue raised at the meeting of 20 January and 7 May 2015,” June 2015, paras. 13–16. 47 Ibid., para. 19. 48 Ibid., paras. 22–24. 49 ALRC, “Copyright and the Digital Economy,” para. 20.2. 50 Copyright Ordinance (Cap 528), s. 2(1). 51 Patent Ordinance (Cap 514), s. 50(1); Registered Designs Ordinance (Cap 522), s. 32(1). See also, 35 U.S.C. § 261 (2006); UK Patents Act 1977, s. 30(1). 52 4th Recital of the Preamble, the TRIPS Agreement. 53 China–Intellectual Property Rights, WTO Panel Report, WT/DS362/R (26 January 2009), para. 7.247. 54 EC–Trademarks and Geographical Indications (Australia), WTO Panel report, WT/ DS290/R (15 March 2005), para. 7.602. 55 Ibid., footnote 564 to para. 7.611. Emphasis added. 56 Ibid., para. 7.246. Emphasis added. 57 Bentham, for example, argued that “[p]roperty and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.” See Jeremy Bentham, Theory of Legislation (London: Adamant Media Co., 2005), 113. 58 Arts. 6 and 105, Hong Kong Basic Law. 59 F. A. Hayek, The Fatal Conceit: The Errors of Socialism (London: Routledge, 1988), 63. 60 R. Pipes, Property and Freedom (London: Alfred A. Knopf, 1999). 61 Hayek, The Fatal Conceit, 30–31. According to Hayek (ibid. 34), the adoption of private property “marks the beginning of civilization.” 62 G. W. G. Hegel, The Philosophy of Right, T. M. Knox trans., (Oxford: Oxford University Press, 1967), §§ 4 & 51. The references are to the numbered paragraphs of Hegel’s text. According to Hegel (§41), “[a] person must translate his freedom into an external sphere in order to exist as Idea.”

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63 John Locke, The Second Treatise of Government (New Jersey: Prentice-Hall, 1997), §§ 25, 27. The references are to the numbered paragraphs of Locke’s text. For details of the analysis, see Wenwei Guan, “The Poverty of Intellectual Property Philosophy,” 38(2) Hong Kong Law Journal (2008), 365–369. 64 From legal right’s autonomy, to self-sufficiency, to self-alienation, see Anthony Carty, “From the Right to Economic Self-Determination to the Right to Development: A Crisis in Legal Theory,” Third World Legal Studies (1984), 76. 65 Hegel, The Philosophy of Right, § 53. 66 Hegel insists (ibid., Addition to §59), it is the “prerogative and the principle of the organic” that the property we take possession of must be destroyed or alienated in order to preserve the self. 67 Ibid. at, §51. 68 While will defines property alienation across generations, contract in general regulates property alienation within a specific generation. Together with the will, contract was regarded by Maine as one of “the two great institutions without which modern society can scarcely be supposed capable of holding together,” which together have “exercised the greatest influence in transforming human society.” Henry Maine, Ancient Law (London: J. M. Dent & Sons Ltd., 1917), 115, 120. 69 Hegel, The Philosophy of Right, §§ 72, 73. 70 According to Hegel (ibid. at §74), a contractual relationship “implies that each [independent property owner], in accordance with the common will of both, ceases to be an owner and yet is and remains one.” In a contract, the mediation between the will to give up a property of his own and the will to take up another property of someone else “takes place when the two wills are associated in an identity in the sense that one of them comes to its decision only in the presence of the other.” 71 See, e.g. Art. 2.1, German Basic Law; Art. 5.1, Greek Constitution. 72 Maine, Ancient Law, 100–101. According to Maine, during the early years of legal history, social development was a process from “a condition of society in which all the relations of Persons are summed up in the relations of Family … towards … a phase of social order in which all these relations arise from the free agreement of Individuals,” “a movement from Status to Contract.” 73 Roscoe Pound, “Liberty of Contract,” 18(7) Yale Law Journal (1909), 456–57. 74 Friedrich Kessler, “Contracts of Adhesion - Some Thoughts about Freedom of Contract,” Columbia Law Review (1943), 641. 75 Art. 1134(1), French Civil Code. 76 According to Mayer, freedom of contract has roots in two lines of precedents in early American constitutional law, i.e. the due process protection of economic liberty and property rights on the one hand and the limitation of state police powers on the other, as the right of liberty of contract to be protected through the Fourteenth Amendment of the US Constitution. See David N. Mayer, “Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract,” 60, Mercer Law Review (2009), 572. 77 Articles 16 & 17, Charter of Fundamental Rights of the European Union. 78 European Commission, Motorola: Enforcement of GPRS Standard Essential Patents (Case At.39985, 29.04.2014), para. 506. 79 DR, TV2 Danmark A/S v NCB−Nordisk Copyright Bureau (Case C-510/10, 26 April 2012), para. 57. See also, European Commission, Motorola: Enforcement of GPRS Standard Essential Patents, para. 507. 80 Locke, The Second Treatise of Government, § 37. 81 Ibid., § 31. 82 Hegel, The Philosophy of Right, § 53. 83 Ibid., §51. 84 Guan, “The Poverty of Intellectual Property Philosophy,” 369–371. 85 Pound, “Liberty of Contract,” 455. 86 Ibid. 457.

114 The Origin of Copyright 87 Calvin Woodard, “A Wake (or Awakening?) for Historical Jurisprudence,” in Alan Diamond ed., The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal (UK: Cambridge University Press, 1991), 225–227. 88 Kessler, “Contracts of Adhesion,” 640. 89 Ibid. 641. 90 Woodard, “A Wake (or Awakening?) for Historical Jurisprudence,” 227–228. 91 Arthur L Corbin, Corbin on Contracts: A Comprehensive Treatise on the Working Rules of Contract Law, vol. IV (St. Paul, Minn.: West Publishing Co., 1951), § 959, footnote 1. 92 Ibid. 93 W. Cornish, D. Llewelyn and T. Aplin, Intellectual Property, 504. 94 Ibid. 95 Art. 7, TRIPS Agreement. 96 Arts. 8(1) and 8(2), TRIPS Agreement. 97 Similar to exceptions to patent rights provided in Article 30 (see discussion supra in the main text associated with footnote 60 in section 4.3.1), the TRIPS regime also provides exceptions to copyrights in Article 13, exceptions to trademark rights in Article 17, and exceptions to industrial designs in Article 26(2) of the TRIPS Agreement. 98 Art. 13, TRIPS Agreement. 99 Copyright Ordinance, s. 37(3). This incorporation of the three-step test in Hong Kong’s copyright law is indeed a problematic implementation. See Guan, “Fair Dealing Doctrine Caught between Parody & UGC Exceptions,” 731–735. See also discussion supra 3.3.2 for more details. 100 China–Intellectual Property Rights, paras. 7.131–132. 101 Oxford English Dictionary (online), www.oxforddictionaries.com/definition/english/bala nce (accessed 22 December 2020). 102 Art. 32, 1969 Vienna Convention on the Law of Treaties (VCLT 1969). See also, Robert Jennings and Authur Watts, Oppenheim’s International Law, 9 ed., vol. 1 (UK: Longman, 1992), 1278. 103 Rubens Ricupero and Ricardo Melendez Ortiz, “Preface,” in UNCTAD-ICTSD ed., Resource Book on TRIPS and Development (New York, NY: Cambridge University Press, 2005), vii. 104 Ibid. 105 Peter K. Yu, “The Objectives and Principles of the TRIPS Agreement,” 46(4) Houston Law Review (2009), 982. 106 UNCTAD-ICTSD, Resource Book on TRIPS and Development (New York, NY: Cambridge University Press, 2005), 3. 107 Ibid. at, 3–4. The other “new area” negotiation in the Uruguay Round concerned trade in services which resulted in the General Agreement on Trade in Services (GATS). See also, Yu, “The Objectives and Principles of the TRIPS Agreement,” 983–984. 108 Daniel J. Gervais, “Intellectual Property, Trade & Development: The State of Play,” 74(2) Fordham Law Review (2005), 507–508. 109 Suggestion by the United States for Achieving the Negotiating Objective (Revision), United States Proposal for Negotiations on Trade-Related Aspects of Intellectual Property Rights, Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods (MTN.GNG/NG11/W/14/Rev.1, 17 October 1988), p. 3. 110 Ibid., 18. 111 Indian submission, “Standards and Principles concerning the Availability, Scope and Use of Trade-Related Intellectual Property Rights” (MTN.GNG/NG11/W/37, 10 July 1989), Communication from India to Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods. 112 Ibid., 2. 113 Ibid. India argued (id) that this is “particularly important for developing countries” as the IP system has “wide ranging implications for their economic and social development.” 114 Ibid., 19–20.

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115 See Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis, 2nd ed. (London: Sweet & Maxwell, 2003), 280; Pedro Roffe and Christoph Spennemann. “Control of Anti-Competitive Practices in Contractual Licences under the TRIPS Agreement,” in Carlos M. Correa and Abdulqawi A. Yusuf eds, Intellectual Property and International Trade: The TRIPS Agreement (The Netherlands: Kluwer Law International, 2nd ed., 2008), 317–319. 116 Communication from Peru, Guidelines for Negotiation that Strike a Balance between Intellectual Property Rights and Development Objectives (MTN.GNG/NG11/W/ 45, 27 October 1989). 117 UNCTAD-ICTSD, Resource Book on TRIPS and Development, 4. 118 Gervais, “Intellectual Property, Trade & Development,” 508. 119 Chairman’s report to the Group of Negotiation on Goods (MTN.GNG/NG11/W/ 76), 23 July 1990. 120 UNCTAD-ICTSD, Resource Book on TRIPS and Development, 543–546. 121 Ibid., 462. 122 Art. 5.A(2), Paris Convention. 123 UNCTAD-ICTSD, Resource Book on TRIPS and Development, 463. 124 Indian submission, “Standards and Principles concerning the Availability, Scope and Use of Trade-Related Intellectual Property Rights” (MTN.GNG/NG11/W/37, 10 July 1989). 125 Arts. 5.A(2) and (4), the Paris Convention. 126 The issue of licensing on grounds of non-working was addressed indirectly by Arts. 27.1 and 70.6 of the Agreement. See UNCTAD-ICTSD, Resource Book on TRIPS and Development, 467. 127 EC−Trademarks and Geographical Indications (Australia), para. 7.246. 128 Art. 27.2, TRIPS Agreement. 129 The WTO Ministerial Conference suggested that the TRIPS Council’s work “shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension.” See para. 19, Ministerial Declaration, adopted at the Fourth Session of the Ministerial Conference at Doha on 14 November 2001, WT/MIN(01)/DEC/1. 130 Paragraph 5(a), the Doha Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2, adopted at the Fourth WTO Ministerial Conference in Doha, Qatar, 14 November 2001, the 2001 Doha Declaration). 131 Canada–Pharmaceutical Patents, WTO Panel Report, WT/DS114/R (17 March 2000), para. 7.26. 132 Art. 32, VCLT 1969. 133 Art. 40.1, TRIPS Agreement. 134 UNCTAD-ICTSD, Resource Book on TRIPS and Development, 543–144.

Bibliography General Australian Law Reform Commission (ALRC). “Copyright and the Digital Economy: final report,” ALRC Report ,122 (November2013). Bentham, Jeremy. Theory of Legislation (London: Adamant Media Co., 2005, an Elibron Classics Replica of 1896 edition by Kegan Paul, London: Trench, Trübner & Co., Ltd). Carty, Anthony. “From the Right to Economic Self-Determination to the Right to Development: A Crisis in Legal Theory,” Third World Legal Studies (1984), 73–86. Commerce and Economic Development Bureau, Hong Kong. “Copyright Protection in the Digital Environment” (2006).

116 The Origin of Copyright Commerce and Economic Development Bureau, Hong Kong. “Review of the Patent System in Hong Kong,” LC Paper No. CB(1)534/12–13(05), February2013. Commerce and Economic Development Bureau, Hong Kong. “Treatment of Parody under the Copyright Regime Consultation Paper” (2013). Commerce and Economic Development Bureau, Hong Kong. “Legislative Council Brief: Copyright (Amendment) Bill 2014,” CITB 07/09/17, 11 June2014. Commerce and Economic Development Bureau, Hong Kong. “The Administration’s response to issue raised at the meeting of 20 January and 7 May 2015” (June 2015). Commerce and Economic Development Bureau, Hong Kong. “The Government’s response to Members’ Proposed Committee Stage Amendments and Deputations’ Submissions,” LC Paper No. CB(4)61/15–16(01), October 2015. Corbin, Arthur L. Corbin on Contracts: A Comprehensive Treatise on the Working Rules of Contract Law, Vol. IV (St Paul, MN: West Publishing Co., 1951). Cornish, W., D. Llewelyn and T. Aplin. Intellectual Property: Patents, Copyright, Trademarks and Allied Rights. (London: Sweet & Maxwell, 8th ed., 2013). GATT Document. “Guidelines for Negotiation that Strike a Balance between Intellectual Property Rights and Development Objectives,” Communication from Peru, MTN. GNG/NG11/W/45 (27 October1989). GATT Document. “Chairman’s report to the Group of Negotiation on Goods,” MTN. GNG/NG11/W/76 (23 July1990). GATT Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods. “Standards and Principles concerning the Availability, Scope and Use of Trade-Related Intellectual Property Rights,” Communication from India, MTN.GNG/NG11/W/37, (10 July 1989). Gervais, Daniel J. The TRIPS Agreement: Drafting History and Analysis, 2nd ed. (London: Sweet & Maxwell, 2003). Gervais, Daniel J.“Intellectual Property, Trade & Development: The State of Play,” 74(2) Fordham Law Review (2005), 505–536. Guan, Wenwei. “The Poverty of Intellectual Property Philosophy,” 38(2) Hong Kong Law Journal (2008), 359–397. Guan, Wenwei. “When Copyrights Meet Human Rights: ‘Cyberspace Article 23’ and Hong Kong’s Copyright Protection in the Digital Era,” 42(3) Hong Kong Law Journal (2012), 785–808. Guan, Wenwei. “Fair Dealing Doctrine Caught between Parody & UGC Exceptions: Hong Kong’s 2014 Copyright Amendment and Beyond,” 45(3) Hong Kong Law Journal (2015), 719–742. Hayek, Friedrich August. The Fatal Conceit: The Errors of Socialism (London: Routledge. 1988). Hegel, G. W. G. The Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967). Hong Kong Bar Association. “Position Paper on the Copyright (Amendment) bill 2014 and the 3 Amendments Proposed by Certain LegCo Members” (17 February2016). Hong Kong University Students’ Union. “Declaration on the Copyright (Amendment) Bill 2014: a tyranny might as well invoke laws and codes, bad laws shall only lay a finger on us without notice,”9 December2015. Jennings, Robert and Arthur Watts. Oppenheim’s International Law, 9th ed., Vol. 1 (London: Longman, 1992). Kessler, Friedrich. “Contracts of Adhesion - Some Thoughts about Freedom of Contract,” Columbia Law Review (1943), 629–642.

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Lau, Stuart. “Five Reasons the Hong Kong Copyright Bill Failed: the political drama explained as Legislative Council debate ended over the controversial legislation,” South China Morning Post (4 March2016). Law Society of Hong Kong. “Position Paper on Copyright (Amendment) Bill 2014” (29 December2015). Legislative Council, Hong Kong. “Letter from Hon Dennis KWOK dated 7 May 2015 on issues relating to the contract override provision,” LC Paper No. CB(4)944/14–15(02) (2015). Legislative Council, Hong Kong. “Submission from Hong Kong Copyright Alliance dated 18 February 2015,” LC Paper No. CB(4)551/14–15(01), 18 February2015. Legislative Council, Hong Kong. “Committee Stage Amendments to be moved by the Honourable Dennis KWOK,” (LC Paper No. CB(4)1249/14–15(01), 2 July2015. Locke, John. The Second Treatise of Government (Upper Saddle River, NJ: Prentice-Hall, 1997). Maine, Henry S. Ancient Law (London: J. M. Dent & Sons Ltd, 1917). Mayer, David N.“Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract,”60 Mercer Law Review (2009), 563–658. Medeiros, John. “Real Purpose of the Copyright (Amendment) Bill Being Overlooked,” China Daily Asia (18 December2015). Pipes, R. Property and Freedom (London: Alfred A. Knopf, 1999). Pound, Roscoe. “Liberty of Contract,” 18(7) Yale Law Journal (1909), 454–487. Ricupero, Rubens and Ricardo Melendez Ortiz. “Preface,” in UNCTAD-ICTSD ed., Resource Book on TRIPS and Development. (New York, NY: Cambridge University Press, 2005). Roffe, Pedro and Christoph Spennemann. “Control of Anti-Competitive Practices in Contractual Licences under the TRIPS Agreement,” in Carlos M. Correa and Abdulqawi A. Yusuf, eds., Intellectual Property and International Trade: The TRIPS Agreement (The Alphen aan den Rijn: Kluwer Law International, 2nd ed., 2008), 293–330. Song, Sio-chong, “A more rational approach to copyright bill urgently needed,” China Daily Asia (20 February 2016). UNCTAD-ICTSD. Resource Book on TRIPS and Development (New York, NY: Cambridge University Press, 2005). Woodard, Calvin. “A Wake (or Awakening?) for Historical Jurisprudence,” in Alan Diamond, ed. The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal (Cambridge: Cambridge University Press, 1991), 217–237. World Trade Organization. Ministerial Declaration, WT/MIN(01)/DEC/1, adopted at the Fourth Session of the Ministerial Conference at Doha, 14 November 2001. World Trade Organization. “Doha Declaration on the TRIPS Agreement and Public Health,” WT/MIN(01)/DEC/2, adopted at the Fourth WTO Ministerial Conference in Doha, Qatar, 14 November2001. Yu, Peter K.“The Objectives and Principles of the TRIPS Agreement,”46 Houston Law Review (2009), 979–1046.

Cases Canada–Pharmaceutical Patents, WTO Panel Report, WT/DS114/R (17 March 2000) China–Intellectual Property Rights, WTO Panel Report, WT/DS362/R (26 January 2009) DR, TV2 Danmark A/S v. NCB−Nordisk Copyright Bureau, Case C-510/10 (26 April 2012) EC–Trademarks and Geographical Indications (Australia), WTO Panel Report, WT/ DS290/R (15 March 2005)

5

Technology as the Copyright OntoEpistemological Force Technological Driving Force and Copyright Onto-Epistemological Integrity

Beyond copyright ontological trilogy, this chapter takes up the copyright circumvention issue aiming at a critique of technology as the onto-epistemological force of copyright evolution. Technology, more than merely the driver of development from copyright going modern in the era of Statute of Anne to going global between the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) regimes, has become both the driver and the bearer of copyright protection when copyright prohibits encryption technology distribution and unauthorized access. Technology, as the driving force of copyright evolution, facilitates the onto-epistemological separation and authorship isolation through the copyright anti-circumvention regime. The chapter calls for great caution regarding the imperative onto-epistemological balance of rights and obligations in the context of technological development and the negative consequences of copyright technological control, should copyright digital reform move further.

5.1 Introduction Copyright, as Goldstein rightly pointed out, “was technology’s child from the start,” as it was the use of water power and the advent of printing technology, together with mass consumers’ demands replacing the preferences of a few royal, aristocratic, wealthy patrons, that called for the protection of copyright.1 Technological advances and network infrastructure progress in recent decades have significantly facilitated and challenged copyright development, which was evident in the birth of the 1996 Internet Treaties and their follow-up development of modern copyright law in the digital age.2 At both national and regional levels, the USA’s Digital Milliennium Copyright Act (DMCA)3 and the European Union (EU)’s InfoSoc Directive4 represent significant efforts of copyright reform for the digital age. EU’s newly adopted Digital Single Market Directive 2019 marks the latest copyright modernization move for the digital age, in particular in responding to digital technology’s transformation of how “creative content is produced, distributed and accessed.”5 However, Hong Kong’s efforts in copyright reform in response to technological advances achieved mixed results. On the one hand, after a brief public consultation, Hong Kong’s 2007 copyright amendment successfully introduced anti-circumvention mechanism confirming technological protection DOI: 10.4324/9781003163282-5

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of rightholders’ copyright interests. On the other hand, Hong Kong’s efforts at adapting copyright protection for the digital environment that started at around the same time, with the first public consultation in 2006,7 failed in both attempts in 2012 and 2016 for various reasons.8 By reference to the US and EU experiences, this chapter goes beyond the technology-copyright dynamics in Hong Kong’s mixed experiences of copyright reform and offers a critical examination of technology’s role in copyright evolution and its ontoepistemological implications for copyright digital reform. The issue central to Hong Kong’s mixed experiences in copyright reform appears to be the tension between technological advances and copyright protection—a tension that holds not only local, but also regional and international significances. While the Internet Treaties fully recognize the importance of technological copyright protection measures,9 consequences of the measures could be mixed. Indeed, while technological advances, in particular the advent of technological protection measures and rights management measures, might offer opportunities to strengthen copyright enforcement, they also bring various issues to copyright protection. On the one hand, some observers welcome the new technology’s convenience of copyright enforcement and argue that technological protection and management measures—digital “locks” that protect copyright materials—“stand ready to radically reduce the scope of the fair use defense.”10 On the other hand, others suggest that the operation of technological protection measures should be subject to fair use doctrine.11 Copyright’s purpose, after all, “is to promote the creation and publication of free expression.”12 As “an engine of free expression” and also “a marketable right to the use of one’s expression,”13 copyright technological protection therefore sits right at the conjuncture of the tension between rightholders’ marketable interest and users’ information access and expression with fundamental significance. Going beyond the examination of the copyright anti-circumvention mechanism in Hong Kong to a comparative reference to the USA’s and EU’s practices, the chapter offers a critical examination of the technology-copyright onto-epistemological dynamics’ significance and implications. After a discussion about the various copyright anti-circumvention mechanisms in Hong Kong, the USA and the EU in Section 5.2, the chapter critically analyzes the technology-copyright implications seen in anticircumvention variations in Section 5.3. The chapter suggests that the exclusive right of access control that has been established has deviated from common law’s tradition of the copyright balance in the idea-expression dichotomy doctrine and TRIPS philosophy of the balance of rights and obligations, which indicates an unfortunate copyright onto-epistemological deficit. While technology has long been the driving force of copyright evolution, copyright’s technological protection, in the digital environment in particular, can be an unfortunate onto-epistemological separation force, hindering information access, dissemination, and even future creation. The chapter concludes with Section 5.4 and calls for particular attention to the ontological isolation and negative prospects of balancing copyright and public information access in anti-circumvention mechanism implementation when copyright reform for the digital age goes further.

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5.2 Circumvention Control and Copyright Access Onto-epistemology 5.2.1 Technology-Copyright Dynamics and the Anti-Circumvention Turn As the technological progress in recent decades has facilitated ways of spreading creations and works dissemination, the World Intellectual Property Organization (WIPO) Internet Treaties updated the international copyright regime to prevent “unauthorized access to and use of creative works” on digital networks, as a response to “developments in technology and in the marketplace.”14 As one of the key instruments, the WIPO Copyright Treaty (WCT) imposes “obligations concerning technological measures” on members to offer “adequate legal protection and effective legal remedies against the circumvention of effective technological measures.”15 Hong Kong, interestingly, laid down its full anti-circumvention mechanism before the Internet Treaties took effect in Hong Kong in October 2008. As the Hong Kong Government states, Hong Kong’s copyright regime is “fully in compliance with the international standards enshrined in the Internet Treaties” and, in some cases, offers “a higher level of protection.”16 Although to a certain extent this might have been true, Hong Kong’s pre-accession incorporation of the anti-circumvention in 2007 Amendment was, however, an accident. As the chapter will show, it contains inevitable defects that, without proper counter control from copyright exceptions, will tip the balance towards right holders at the cost of copyright users and the general public in copyright reform for the digital age. Before anti-circumvention mechanism’s full establishment in Hong Kong, the formulation and amendments of Hong Kong’s copyright regime were rarely technology-oriented. Hong Kong’s current copyright regime, Copyright Ordinance Cap 528, was established upon Hong Kong’s return to China, yet modeled on the UK’s Copyright, Designs and Patent Act 1988 (CDPA).17 It is worth mentioning that the following several amendments of the Cap 528 were seldom tech-driven, rather piracy-control oriented. The Intellectual Property (Miscellaneous Amendment) Ordinance 2000, for example, aimed at controlling issues of “bootlegging and corporate copyright piracy.”18 As to the copyright piracy issue, for example: … The use of copyright infringing products in business, e.g. pirated computer software is a serious problem in Hong Kong. According to an unofficial estimate, about 50% of all computer software used in business is pirated.19 The 2000 Amendment’s general criminalization of the use of infringing products in business for combating corporate copyright piracy raised “immediate concerns” among the public that the amendments had hampered information dissemination in enterprises and educational sector. The Amendment was thus suspended in 2001, and criminal liabilities were narrowed down to a rather smaller scope.20 The suspension was further extended in 2003 to the end of July 2006. The Hong Kong Government consulted the public between December 2004 and

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January 2005 on issues of the scope of the business end-user criminal liability, copyright exception, rental rights and parallel importation, etc., which led to the 2007 Amendment. Consequently, the Amendment’s incorporation of the anti-circumvention mechanism in 2007 was more or less an unfortunate miscarriage, as it clearly remained as an instrumental fix, tackling piracy issues rather than a copyright regime’s proper response to technological advances. In fact, the 2007 Amendment, although technologically relevant, has a particular piracy-control purpose. As the Hong Kong Government’s Public Consultation acknowledges: … some copyright owners in the game industry have pointed out that the sale of modified game consoles installed with modifying chips, which is a kind of device circumventing access control and copy-protection measure, is common in Hong Kong and it is extremely difficult for them to initiate civil actions against a large number of retailers. They consider that more stringent measures should be introduced.21 Indeed, not only was the anti-circumvention mechanism misconceived in Hong Kong’s 2007 Amendment, missing a technology focus, but also it has given birth to an unfair copyright regime tipping the balance toward right holders with a broken ontological balance between copyright authorship, readership, and entrepreneurship. It is worth emphasizing that the Copyright Ordinance before the 2007 Amendment prohibits only circumvention of copy-control rather than access-control copyright protection measures. According to the Copyright Ordinance, any dealing in trade or business of “any device or means specifically designed or adapted to circumvent the form of copy-protection employed” is prohibited.22 In fact, whether right holders’ rights should be extended to cover access control measures or criminal sanctions be introduced was heavily disputed during the 2007 Amendment. On the one hand, copyright owners unanimously supported the provision of additional civil rights (albeit by varying degree) and introducing criminal sanctions and considered them necessary to effectively implement the relevant provisions of the WIPO Internet Treaties.23 On the other hand, the additional civil rights and criminal sanctions proposal was objected to by a greater number of the submissions, including those from the education sector, chambers of commerce, trade associations, professional bodies, and other organizations, as well as individual members of the public with concerns about monopoly, over-protection, or disabling fair dealing.24 The final outcome of the contention sees the triumph of the right holders’ interest, as access control, backed with criminal sanctions, was added to the copy control in the 2007 Amendment. According to the Amendment, rights and remedies against circumvention conferred to the right holders cover both access control or protection process in addition to the copy control right they already have.25 Starting small from an instrumental fix against the sale of modified game consoles, the 2007 Amendment achieved far-reaching implications in favor of right holders’ interests, as it entitles right holders to the de facto access control right—a right never

122 The Origin of Copyright available before. Accordingly, right holders’ copyright protection has been expanded from copy control to access control against users and the general public by employing anti-circumvention technology. The “successful” 2007 Amendment met not much objection at all and in fact gained its “legitimacy” thereafter. The Amendment’s inclusion of the “new civil and criminal provisions” against copyright circumvention has been considered as part of the efforts creating a conducive business environment to develop Hong Kong as a hub for technological cooperation and trade.26 After the Amendment, criminal liability for dealing in circumvention devices or providing circumvention service is one of those few criminal provisions under Hong Kong’s current copyright regime.27 From August 2007 to April 2012, the Hong Kong Government instituted 68 prosecutions, which involved 111 charges of criminal liabilities under the newly introduced 2007 Amendment and resulted in 88 convictions.28 To be fair, the 2007 Amendment seemingly institutes a counterbalance too. According to the Amendment, authorized acts, interoperability operations, cryptography research, security testing, access to parallel imports, and law enforcement, etc. are exempted.29 Any other act that “does not constitute or lead to an infringement” of copyright or related rights yet “has been, or is likely to be, adversely impaired or affected” by the application of the new amendment, may be exempted by the Secretary for Commerce and Economic Development (SCED) by notice published in the Gazette. 30 Consequently, any legitimate use before the Amendment that is now covered by the right newly developed in relation to copyright circumvention can only be exempted according to a gazetted SCED notice. Users and the general public’s fair dealings will then need to face the all-embracing access control from the right holders at SCED’s mercy. Making things worse, the birth of the access control right followed by the failure of both the 2011 Bill’s and the 2014 Bill’s attempts at introducing various copyright exceptions for the digital age lead to a future significant imbalance between right holders and users and the general public. At the time when the Hong Kong’s Legislative Council (LegCo) was discussing the 2007 Amendment, the Hong Kong Government launched “the next phase” review of the copyright law to meet technological challenges in digital era.31 The purpose of the amendment was to update copyright law to catch up with technological advances, to enable cooperation in fighting against online infringement, and to facilitate new modes of uses.32 The eventual Copyright (Amendment) Bill 2011 addresses issues of the legal liability for unauthorized communication of copyright works, the introduction of an “all embracing right of communication,” OSP’s liability, and the mechanism facilitating civil actions against internet piracy.33 The 2011 Bill’s provision of the all-embracing and exclusive right of communication and the criminalization of unauthorized communication, plus the absence of the parody exception, stirred up public concerns around its negative impact on free speech.34 The 2011 Bill came to an end upon the expiry of the then LegCo’s term in July 2012.35 In June 2014, after a new round of consultation on parody treatment in 2013 in which not much consensus has been achieved,36 upon incorporation of parody exception and further clarification of copyright criminal liability, the Copyright (Amendment) Bill 2014 was introduced to

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LegCo. After LegCo pan-democrat members’ months of filibustering at the LegCo around issues of UGC exception, fair use and contract override going beyond parody treatment, the Government decided in March 2016 to abandon the Bill and brought the Bill to its end upon the then LegCo Term’s expiry in 2016.37 From its humble start in game console piracy control, Hong Kong’s 2007 Amendment introduced a far-reaching access control right to right holders. An allembracing access control right without possible constraints of copyright exceptions was then created, owing to the failures of both the 2011 Bill and 2014 Bill. The inherent yet fragile ontological balance between authorship, readership, and entrepreneurship surrounding copyright’s protection of individual proprietary expression has been unfortunately broken. Copyright reform for the digital age— updating copyright law to meet technological challenges, to fight against online infringement, and to facilitate new modes of uses and learning—appears to be an incomplete or unfinished story, a broken balance in favor of rightholders, most often represented by the investment interest of copyright entrepreneurship. Before looking further into the intra-play between copyright and technology and its critical copyright onto-epistemological implications, the chapter will next look first at copyright circumvention’s diversified implementations in pioneers such as the USA and the EU. 5.2.2 DMCA’s Access Control and Technology-Copyright Dynamics To implement the Internet Treaties, the USA’s DMCA 1998 “is designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age.”38 Among others, DMCA Title I adds a new Chapter 12 to Title 17 of the US Code to prohibit circumvention of technological measures protecting access to copyrighted works, and thus “bring[s] U.S. copyright law squarely into the digital age.”39 The amendment’s introduction of the anti-circumvention mechanism was considered to be the “most sweeping revision ever” to the Copyright Act of 1976, and “the most important feature” of the DMCA.40 Technically, what the anti-circumvention amendment does to address the on-line environment is “just as Congress [has] acted in the areas of cable television and satellite transmissions to prevent unauthorized interception and descrambling of signals,” which “intend[s] to ensure a thriving electronic market place for copyrighted works on the Internet.”41 Under the title, “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under [Copyright Law of the United States].”42 Moreover, beyond prohibiting circumvention of access control, the Statute also prohibits the manufacture and provision of products and services designed for the purpose of circumventing access control measures,43 as well as the manufacture and provision of products and services designed for circumventing protection afforded by a copyright protecting measure.44 Therefore, the DMCA introduced two types of anti-circumvention control, which include an access control circumvention ban in section 1201(a) and a post-access further use circumvention ban in section 1201(b). The access control circumvention ban in section 1201(a)

124 The Origin of Copyright prohibits both the conduct of circumventing access control and dealing of control-circumventing devices. 45 According to the House of Representatives Committee on the Judiciary, the ban on dealing of access-circumventing devices “supplements the prohibition against the act of circumvention,” and thus “provide [s] meaningful protection and enforcement of the copyright owner’s right to control access to his or her copyrighted work.”46 The Committee in particular noted that “[s]imilar laws have been enacted in related contexts.47 Section 1201 (b)’s post-access use circumvention ban prohibits only dealing in circumvention products, services and devices rather than the conduct of circumventing copy control measures, “because it would [otherwise] penalize some noninfringing conduct such as fair use.”48 Therefore, while section 1201(a) dictates an access control circumvention prohibition, section 1201(b) demands only a post-access copy control circumvention ban.49 The analytical structure of the section 1201 anti-circumvention mechanism therefore shows that the focus of the mechanism is placed on prevention of unauthorized access to copyrighted works rather than post-access unauthorized use. The mechanism thus raised concerns, as the Committee argued that throughout history, “the ability of individual members of the public to access and to use copyrighted materials has been a vital factor in the advancement of America’s economic dynamism, social development, and educational achievement.”50 The Committee worried that the mechanism “would undermine [US] Congress’ longstanding commitment to the principle of fair use.”51 While acknowledging “the growth and development of the Internet has already had a significant positive impact” on copyright access, the Committee was also concerned that marketplace realities may wish “less access, rather than more, to copyrighted materials that are important to education, scholarship, and other socially vital endeavors.”52 The Committee therefore considered that “it could be appropriate to modify the flat prohibition against the circumvention of effective technological measures that control access to copyrighted materials, in order to ensure that access for lawful purposes is not unjustifiably diminished.”53 Considering the concern about “how changing technologies may affect user’s access in the future,”54 and “the threat of a diminution of otherwise lawful access to works and information” in mind,55 the DMCA created a “fail-safe” mechanism. On the one hand, the mechanism converts the statutory ban of circumvention into a regulation; on the other hand, it creates a rulemaking procedure to determine a temporary waiver of the anti-circumvention ban “on the basis of real marketplace developments that may diminish otherwise lawful access to works.”56 This mechanism is regulatory rather than statutory in nature, in order “to provide greater flexibility in enforcement” through the rulemaking procedure.57 Under the Statute, the anti-circumvention ban took effect on 28 October 2000, “the end of the 2-year period beginning on the date of the enactment of [the DMCA].”58 The anti-circumvention ban shall not apply to copyright users whose “ability to make noninfringing uses of that particular class of works” are, or likely to be “adversely affected” in the succeeding 3-year period.59 According to the Statute, these 1201 anti-circumvention exceptions are determined in a rulemaking

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procedure every three years in consideration of availability, prohibition’s impact on “criticism, comment, news reporting, teaching, scholarship, or research,” circumvention’s market effect or value, and “such other factors as the Librarian considers appropriate.”60 The Statute also states clearly that the new anti-circumvention mechanism shall not “affect rights, remedies, limitations or defense to copyright infringement, including fair use” under US Copyright Law.61 The title provides permanent exemptions to allow specified uses, ranging from library and educational institution uses, to government law enforcement activities, to computer and system “security testing.”62 The legislative history, however, indicates that the mechanism was not intended to cover fair use. According to the Committee, the mechanism does not cover the subsequent actions after authorized access, and traditional fair use defenses remain fully applicable if the access is authorized.63 Under this mechanism, therefore, “an individual would not be able to circumvent in order to gain unauthorized access to a work, but would be able to do so in order to make fair use of a work which he or she has acquired lawfully.”64 During the first rulemaking procedure, a proposal by a large number of commenters, including Higher Education Associations, of an exemption to circumvent access control for fair use purposes was not accepted for the reason that proposal seeking “to limit its applicability to certain classes of users or uses, or to certain purposes” goes “beyond the scope of this rulemaking”, as the Librarian is only asked to “determine whether to exempt any ‘particular class of works.’”65 During the 2015 rulemaking procedure, similarly, some exception proposals, such as an exception for non-commercial “space-shifting” or “format-shifting” activity circumventing access controls on lawful audio-visual or literary works, were considered yet rejected.66 Opponents argued that “non-commercial space- and format-shifting are not established fair uses under the law.”67 The policymaker, the Register, recommended rejecting the exception on the grounds that “the law of fair use, as it stands today, does not sanction broad-based space-shifting or format-shifting,” and preferred to leave the complex “policy judgment” to Congress or the courts.68 Therefore, the DMCA’s anti-circumvention implementation so far has not been conscious of fair use, but has instead created a legitimate access control right for copyright holders, which unfortunately creates a separative ontological barrier at least between authorship and readership. The DMCA’s “technological fix,” according to Lunney, declares the “death of copyright” in surrendering copyright’s “original public spirit” protecting creative works primarily to advance the public interest to “the dictates of a private interest—the welfare of copyright owners.”69 5.2.3 EU’s Anti-circumvention and Use Control In contrast with the DMCA’s creation of the ontological separation between authorship and readership, the EU’s anti-circumvention implementation attempts a minimum ontological balance between authorship and readership. Indeed, the EU touched the technological protection issue long before implementing the

126 The Origin of Copyright Internet Treaties. In a 1988 Green Paper, the EC Commission indicated its intention to the development of technological devices that might be used to prevent or control copyright infringement and was concerned about how technological protection devices’ use “would affect the balance of interests among right holders, equipment producers and consumers.”70 Furthermore, the 1991 Computer Programs Directive obligates member states to prohibit commercial dealing of “any means the sole intended purpose of which is to facilitate the unauthorized removal or circumvention of any technical device which may have been applied to protect a computer program.”71 According to the EC Commission, the Conditional Access Directive’s “harmonized protection against unauthorized reception of a conditional access service,” although this might or might not be intellectual property relevant, is “complementary” to InfoSoc Directive’s regulation of the “unauthorized exploitation of a protected work or other subject matter.”72 Compared with DMCA, the EU’s implementation took a longer time, and the implementing legislation, the EU InfoSoc Directive, was passed only on 22 May 2001. “To avoid fragmented legal approaches that could potentially hinder the functioning of the internal market,” the European Community recognized that “there is a need to provide for harmonised legal protection against circumvention of effective technological measures and against provision of devices and products or services to this effect.”73 Under the InfoSoc Directive, “Member States shall provide adequate legal protection against the circumvention of any effective technological measures,” and against dealing “for commercial purposes of devices, products or components or the provision of services” circumventing any effective technological measures.74 The Directive bans only the dealing of devices or provision of services that are either “promoted, advertised or marketed” for circumvention of, or have limited commercial value “other than to circumvent,” or “are primarily designed, produced, adapted or performed” for the purpose of assisting circumvention of any effective technological measures.75 As one of its very prominent features, it is important to note that the focus of the anti-circumvention mechanism under the Directive appears to be control of unauthorized use rather than access control. Under the Directive, “technological measures” refer to any technology, device, or component that is operated “to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder” under copyright law.76 According to the Directive, technological measures “shall be deemed ‘effective’ where the use of a protected work or other subject-matter is controlled by the rightholders through application of an access control or protection process, which achieves the protection objective.”77 The Directive’s focus on unauthorized use rather than access can also be seen through its legislative history. As to “effective” technological measures, while the early draft refers to where copyright work is “rendered accessible to the use only” through right holders controlled application of measures,78 the amended draft refers to where “the access to or use of” copyright work is under rightholders’ application of control measures.79 In the final text of the Directive, “effective” technological measures refer to where the “use” of copyright work is controlled by the right holders through application of an access control of protection process.80

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The legislative history shows that the focus has been rightly placed on the control of use rather than access, although right holders’ access control as the means of technological measures has been kept in mind throughout the legislative process. As another prominent feature, the InfoSoc Directive indicates an obvious effort to balance technological enhancement of copyright protection with the needs of safeguarding public interests. First, it is emphasized that the access of persons with disabilities to copyrighted works should not be undermined in any case. The Directive states that it is important for “Member States to adopt all necessary measures to facilitate access to works by persons suffering from a disability which constitutes an obstacle to the use of the works themselves, and to pay particular attention to accessible formats.”81 Second, the Directive has been clearly crafted to achieve a balance between right holders and the general public through either voluntary undertaking or state measures. According to the Directive, “for the benefit of certain non-profit making establishments, such as publicly accessible libraries and equivalent institutions, as well as archives,” EU member states “may provide for an exception or limitation,” and, without creating imbalances, “specific contracts or licences should be promoted.”82 Furthermore, under the Directive, the legal protection of technological measures applies without prejudice to “public policy” as reflected in exceptions and limitations or “public security.”83 For this purpose, member states should either “promote” voluntary undertakings by right holders or their agreement with other parties concerned; or otherwise, “should take appropriate measures to ensure that rightholders provide beneficiaries of such exceptions or limitations with appropriate means of benefiting from them, by modifying an implemented technological measure or by other means.”84 Third, the anti-circumvention mechanism under the Directive “shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.”85 However, the status or nature of the limitations in relation to the application of technological protection measures is unclear in the InfoSoc Directive. First, although the effect of technological measures protection may be mitigated for the purposes of safeguarding benefits within certain limitations, however, this safeguard “is … itself diminished where a work or other subject matter is made available on demand, on agreed contractual terms.”86 In the case of uses for the benefit of people with disabilities, “[t]he cross-border access to online sources with accessible materials is further complicated by the diverging regimes for technological protection measures and the possibility to override any limitations in favour of people with a disability by contract.”87 The availability of restricting the exercise of limitations through the application of technological protection measures and by stipulation in a contract “gives rights owners a clear advantage over users.”88 Therefore, although the Directive appears to offer safeguard for beneficiaries’ interests from various limitations, the “seemingly haphazard list of limitations” and different treatment “between the different limitations and between works that are made available interactively or not” give right holders “the discretion to override these limitations by using TPMs distinctions,” which creates an imbalance “to the detriment of the users.”89

128 The Origin of Copyright Second, in their implementation of the InfoSoc Directive, member states’ clarifications of the scope of “rights” relevant to technological protection measures vary. Some members states, including Latvia, Lithuania, and the Scandinavian countries, suggest a positive obligation of rightholders to grant access to works, “a preference for beneficiaries in that a positive obligation denotes a right to ‘fully enjoy’ benefits of limitations as foreseen in the statute.”90 Other member states, however, chose a literal transposition, which suggests that readings of the legal nature of the technological protection measures might be different or undetermined.91 Member states’ recognition of the status of limitations also varies quite significantly. Some member states, such as Belgium, Portugal, and Denmark make clear reference to whether copyright limitations may be overridden by contract.92 In Portugal93 and Denmark,94 a right holder may not restrict limitations by contractual agreement. Conversely, right holders may restrict beneficiaries’ rights in contractual agreements in Germany, Italy, and Spain.95 Therefore, divergence in InfoSoc Directive implementation shows member states’ inconsistent approaches and that “the scope of obligations imposed on the right holder significantly varies.”96 While the DMCA and Hong Kong’s 2007 Amendment show a clear right holder interest-oriented preference of establishing the exclusive access control with variations, the InfoSoc Directive focuses on use control and attempts a certain balance between right holder’s interests and fair use access. The intentional or unintentional accommodation of copyright ontological balance between authorship and readership, although limited, should certainly still be welcome. One noticeable commonality among the implementations, the prohibition of encryption technology distribution, and access control protection in these implementations, in particular in the DMCA and the 2007 Amendment, indicate that technology has become both the driver and the bearer of the copyright protection. However, from copyright modernization via the Statute of Anne 1710 to its global protection from the Berne Convention to TRIPS, where printing technology’s enabling right holders’ growing proprietary interests were balanced with benefits of facilitating public learning, which led to the birth of the Act,97 technology has always been the driver of copyright development only. The contrast between the approaches and the circumstance of anticircumvention mechanisms taking root differently in national regimes from the same international framework leads us to the question of the nature of the circumvention ban and its onto-epistemological implications for technology-copyright dynamics and copyright digital reform.

5.3 Technology and Copyright’s Ontological Balance of Interests 5.3.1 Copyright as Private/Negative Right and Access Control’s Ontology The variation of the anti-circumvention mechanisms, as seen in Hong Kong’s 2007 Amendment, the DMCA, and the EU’s InfoSoc Directive, indicates different treatments as to the nature of circumvention and copyright, which bears different copyright onto-epistemological implications. According to the US House of Representative Committee on the Judiciary, “[t]he act of circumventing a technological

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protection measure put in place by a copyright owner to control access to a copyrighted work is the electronic equivalent of breaking into a locked room in order to obtain a copy of a book.”98 This analogy to a certain extent explains the DMCA’s treatment of circumvention and the criminal penalty imposed. Under the DMCA, circumvention of copyright protection systems in violation of the DMCA is subject to criminal penalty of up to ten years imprisonment or a fine up to US$1 million or both,99 which is comparable to the Federal penalty imposed on the crime of “sale of stolen goods” under the US criminal code, with up to ten years imprisonment.100 Most importantly, both the DMCA and the 2007 Amendment created a brand new access control right. Under the DMCA, for example, the same penalty applies to all acts of access circumvention, yet only device-related protection circumvention indicates the DMCA’s fundamental attention to copyright access control.101 In fact, it has been argued that the DMCA established right holders’ “right to control digital access to copyrighted works”—an integral part of copyright that corresponds to the traditional reproduction or public performance right of the right holder and responds to the dominant way in which works are exploited in the digital era.102 According to Ginsburg, in “an access-based world of distribution of copyrighted works,” any system that neglects access controls “would make copyright illusory” and do a disservice to consumers in the long run.103 Indeed, a US District Court confirmed that copyright holders “have the ‘right to control’ access to” copyrighted materials.104 The issue of right holders’ access control points to the fundamental question as the nature of copyright: what exactly does copyright protect? In general, copyright in particular or intellectual property in general are considered private rights. Under the UK’s CDPA 1988, for example, “copyright is a property right which subsists in designated descriptions of work in accordance with law.105 Under the TRIPS framework, too, WTO members recognize that “intellectual property rights are private rights.”106 As a WTO Panel suggested, the “common feature” of the Sections in Part III of the TRIPS Agreement of resting on private right holders the responsibility of initiating various protection procedures, for example, strongly indicates “the nature of intellectual property rights as private right.”107 As much as, if no more important than the private right recognition, intellectual property rights (IPR) are also negative rights. A WTO Panel pointed out in a trademark right case that the right conferred under TRIPS is an exclusive right that belongs to the right holder “who may exercise it to prevent certain uses by ‘all third parties’ not having the owner’s consent,”108 and the TRIPS provision “only provides for a negative right to prevent all third parties from using signs in certain circumstances.”109 Accordingly, “the TRIPS Agreement does not generally provide for the grant of positive rights to exploit or use certain subject matter, but rather provides for the grant of negative rights to prevent certain acts.”110 Acts restricted by copyright are usually unequivocal. Under the WCT, members are obliged to offer legal protection and remedies against the circumvention of technological measures “that are used by authors in connection with the exercise of their rights [under the Berne Convention] … and that restrict [unauthorized or illegal] acts.”111 According to the Berne Convention, author’s exclusive rights

130 The Origin of Copyright granted include the right of translation,112 reproduction,113 public performance and communication or recitation to the public,114 broadcasting,115 adaptation,116 and audio-visualization of works.117 Subject to limitations or exceptions, and to duly-made reservations, members of the Berne Convention guarantee more or less the same exclusive rights to authors under their national jurisdictions. Under the CDPA 1988 in the UK, for example, a copyright owner has the exclusive right to prevent “acts restricted by copyright,” which include copying, issuing to the public the copies of, performance, broadcasting, and making adaptation of the copyrighted works.118 Accordingly, a person violates the copyright only if the person concerned “does, or authorizes another to do, any of the acts restricted by the copyright” without the license of the copyright owner.119 The real issue here is that the act of circumvention, what the House of the Representatives of the USA called an “electronic equivalent of breaking into a locked room in order to obtain a copy of a book,”120 is neither copy, performance, broadcasting, nor adaptation. The act of circumvention, however, does break the “locked room”—technological protection measures—and gains access to copyrighted material that the right holder would prefer to control. Analytically, any one act of circumvention is potentially capable of violating three things: the “locked room,” the copyrighted material, and the copyright that is embodied in that material. Treating the act of circumvention as copyright infringement, as seen in the analogy from the US House of Representatives, has lumped these three things together indiscriminately. This unfortunately contains a fundamental flaw, as the property right of an object and copyright in that object are distinct from one another. As the Re: Dickens case has established, rights of property in an object in which a copyrighted work or subject matter is embodied are distinct from copyright in that same object.121 Breaking into a locked room and stealing a book would not violate the book’s copyright until acts restricted under copyright, such as reproduction or adaption without authorization, have been done. By confusing the property ownership of the material with the copyright embedded therein through lumping them into one single copyright infringement, copyright holders successfully establish control of the property rights—an unintended extension of the USA’s anti-circumvention mechanism. Although the status or nature of the limitations in relation to technological protection measures appears to be unclear in the InfoSoc Directive’s anti-circumvention implementation, there is at least no DMCA-like absolute access control established. Right holders are under obligation to guarantee limitations or access to certain exception’s beneficiaries through voluntary technological undertakings. There are in fact strong doubts against right holders’ right of access control,122 in particular in the InfoSoc context. In a reply by the European Commission’s Legal Advisory Board (LAB) to the InfoSoc Green Paper, the LAB pointed out that an overly broad definition of right holders’ exclusive reproduction right in the digital environment covering digital usage done via an intermediate stage creates a brandnew exclusive right of digital usage.123 According to the LAB, the novel right of digital usage “is antithetical to the traditional principle” that copyright does not protect against acts of consumption or reception of information.124 As the LAB

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suggested, therefore, “the extension of traditional copyright to cover acts which amount to mere consumption of works is highly questionable,” as it goes against individuals’ basic rights of privacy and freedom of reception under European Convention on Human Rights.125 In Scarlet Extended SA v. SABAM, the injunction sought by the copyright holder against internet service providers who refused to install filtering systems to prevent unauthorized access was found to be in breach of freedom to information, as it fails to achieve a “fair balance” between the right to intellectual property and “the freedom to receive or impart information.” 126 It should be noted that the general public’s “access to information” is of fundamental importance. Indeed, the Internet Treaties emphasized “the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information.” 127 Copyright protects right holders from unauthorized acts of reproduction, communication, and adaptation etc, yet not against the access to copyright materials. Technological protection measures allowing information providers in cyberspace to control the terms of access, according to Elkin-Koren, “creates a regime that is very similar to a property regime,” and thus further “blurs the distinction between contractual rights (rights in persona) and property rights (rights in rem).” 128 Copyright is both a private right and negative right, and if copyright access control is allowed, might turn into a negative right in rem that limits knowledge dissemination. Using property ownership to establish copyright control, as hinted in the 2007 Amendment and the DMCA, is indeed nothing new, but rather a story begun long ago at the founding moment of modern copyright law right after the promulgation of the Statute of Anne in 1710. Fortunately, while Millar v. Taylor confirmed stationers’ perpetual common law right to publish a work acquired, the House of Lords in Donaldson v. Becket rejected the notion of a perpetual common law right to literary property and held that it had not previously existed even before the Statute of Anne. 129 According to Lord Camden, whose opinions served as the base of the delivered judgement, “science and learning … ought to be as free and general as air or water. … Knowledge has no value or use for the solitary owner: to be enjoyed it must be communicated.”130 Breaking ties with the perpetual property interest for the encouragement of public learning, the Statute of Anne indeed brought copyright into the modern era. Attributing copyright foundation to an author’s creation yet balanced with public learning, the Statute of Anne achieved the ontological balance between authorship, readership, and stationer’s entrepreneurship in making copyright modern. Moving modern copyright towards the digital age yet in the process muddling property interest and copyright for the birth of access control, the implementation of these Internet Treaties’ hampers knowledge dissemination at the public’s cost, thus rendering an impact which copyright tried to avoid more than 300 years ago. Or, as Lunney, Jr put it, the copyright development creates a “full circle, from the guild monopoly of the Stationers’ Company to the guild monopoly of the DMCA.”131 Most unfortunately, under these anti-circumvention implementations, technology as the driver or instrument of copyright protection collapses into the content of copyright protection upon copyright’s shift from

132 The Origin of Copyright analogue to the digital era. The seemingly ontological balance between authorship, readership, and entrepreneurship that was attempted and established with great effort 300 years ago has thus become unattainable again. 5.3.2 Copyright Exceptions and the Balance of Rights and Obligations The unintended establishment of the exclusive access control right, breaking the copyright ontological balance and turning copyright to negative right in rem, is indeed at odds with copyright tradition that offers only exclusive rights against the reproduction of rather than access to or the usage of copyright content. In fact, when incorporating the Berne Convention,132 TRIPS also indicates that copyright protection “shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”133 This classic idea-expression dichotomy doctrine has long been established in national law, such as the US Copyright Act of 1976, and international law, such as the WCT 1996.134 This doctrine was developed through early common law cases and well-illustrated in Baker v. Selden and Kenrick v. Lawrence. 135 In Baker, the US Supreme Court distinguished a book from illustrations in the book, saying that “whilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practice and use the art itself which he has described and illustrated therein.”136 Historically, it was indeed the expression—the product—where the economic interest dwells rather than ideas as such, that required protection, as copyright protection “was a protection against copying, and not against use.”137 In confirming copyright as “an engine of free expression,” the US Supreme Court pointed out that copyright’s protection of expression “supplies the economic incentive to create and disseminate ideas” through “establishing a marketable right to the use of one’s expression.”138 Offering copyright protection beyond expression to the ideas expressed, would copyright facts or information per se, and repeat the “flaw”—as the US Supreme Court pointed out in Feist—of the sweat of the brow doctrine’s extending copyright protection in compilation beyond selection and arrangement to the facts themselves.139 Indeed, copyright access control’s protection of right holders’ proprietary interest over the information expressed sits at the center of the tension between idea and expression, and between right holders’ proprietary interest and the public’s access to information—the final straw that breaks the copyright ontological balance. In fact, ever since the day it went modern in the Statute of Anne, copyright has indeed been a limited right, subject to limitation to give consideration to public interest, rather than an absolute right in rem with perpetuity. The Statute of Anne transformed copyright from a perpetual monopoly interest under guild regulation to a limited proprietary interest of statutory right.140 Indeed, the Statute of Anne “took seriously its stated purpose—the encouragement of learning—a goal that required making books available to the public.”141 Indeed, the “fair abridgement” doctrine started in UK in Gyles v. Wilcox in 1740,142 and the “justifiable use of the original materials” in the US case Folsom v. Marsh, together formed the basis of

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modern fair dealing or fair use doctrine, which allows unauthorized use as a legitimate limit to copyright. Under the US Copyright Act, which incorporates the fair use doctrine, factors to be considered in defining whether an unauthorized use is fair or not include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use on the potential market.143 Among the four factors, the focus on the commercial nature of the use and adverse market effect indicates that copyright does not prohibit those uses that are non-commercial or produce no adverse market effect. Internationally, the Berne Convention 1971 established fair use in the form of quotation144 or for teaching145, broadcasting146, or reporting current events147 to limit right holders’ exclusive right to exploit the work. These fair use exceptions— the unauthorized uses that are “compatible with fair practice” and “justified by the purpose”—are meant “to meet the public’s thirst for information.”148 Certain compulsory licensing mechanisms have also also been incorporated in the Berne Convention. For example, under the Convention, the compulsory licensing mechanism in relation to an author’s exclusive “Right of Broadcasting”149 was introduced in the 1928 Rome Revision, when the broadcasting right was first introduced and then broadened in the 1948 Brussels Revision.150 Similarly, the compulsory licensing mechanism in relation to authors’ exclusive “Right of Recording Musical Works”151 was introduced in the 1908 Berlin Revision and modified through the 1948 Brussels Revision and 1967 Stockholm Revision.152 Most importantly, the incorporation of the compulsory mechanism was “done in the interest of the public,” the spirit of which “is one of striking a fair balance between conflicting interests.”153 TRIPS incorporation of the Berne Convention in the international trading framework led the copyright development into a new era.154 During copyright’s evolution from the domestic book trade in the Statute of Anne era, to going international in the Berne Convention era, to going global in trade in TRIPS, the scope of copyright limitations or exceptions has indeed been expanding for the public. Moreover, the copyright limitations and exceptions are indeed in-built in copyright, which, to some extent, reflects a necessary control of the inevitable abuse of the “negative right in rem” in trade, which is something inherent in copyright ontology. As the US Supreme Court indicated, copyright not only protects [authors’] creation of free expression, but also contains “built-in” fair use accommodation of [users’ or consumers’] free expression.155 Therefore, fair use is something beyond copyright to limit copyright and something to limit authors’, right holders’ and traders’ interests for users’ and consumers’ benefit which means that copyright is something beyond trade to limit trade, to remedy trade distortion or “market failure”. In implementing the anti-circumvention mechanism, the US House of Representative indeed noticed the harshness of “flat prohibition against the circumvention” which could potentially undermine Congress’ “longstanding commitment to the principle of fair use” and lead to “less access” to important copyrighted materials for education and other social endeavors.156 The “fail-safe” rulemaking procedure was indeed established as a fair-use-like function to soften the rigidity of the anti-circumvention mechanism.157

134 The Origin of Copyright Similarly, some commentators argued, the economic rationale for copyright law is to “remedy a market failure in the dissemination of information, commonly referred to as the ‘public good’ problem.”158 Copyright law, however, also “causes another type of market failure by creating a monopoly,” an issue of “deadweight loss.”159 As a broad context regarding the nature of copyright exception, it has been commonly considered that a compulsory licensing scheme imposed by regulatory authorities is to correct “market distortions”, e.g., exceedingly expensive or impractical bargaining that leads to failure of consensual exchanges.160 According to an economic and structural analysis, therefore, “fair use is ordinarily granted when the market cannot be relied upon to allow socially desirable access to, and use of, copyrighted works.”161 The US Supreme Court’s jurisprudential reliance on the fourth of the four factors of the fair use analysis was considered to suggest that the fair use doctrine is essentially “a remedy to symptoms of market failure.”162 Copyright laws were thus created “to address a market failure arising from the public good characteristics of creative works of authorship, and more specifically to cure the problem of under-production.”163 Limitations on copyright, therefore, “are an integral part of the copyright system”164—indeed the Hegelian “prerogative and the principle of the organic.” Even the so-called “three-step test”—the limit of copyright limitations and exceptions—is to delineate the boundary of the balance of the rights and obligations. The three-step test was introduced to the Berne Convention during the 1967 Stockholm Revision and adopted in the 1971 Paris Text.165 In the context of the Berne Convention, the test applies only to exceptions to exclusive reproduction rights, but not other exceptions like quotations and educational illustrations,166 or reporting current events.167 The test was then incorporated into the TRIPS Agreement with expanded scope to cover all exclusive rights under TRIPS.168 However, the three-step test at the same time delineates the boundary of right holders’ exclusive interests to be protected. Under the Berne Convention, the test “gives to member countries the power” to limit the exclusive right of reproduction and allows works to be reproduced “in certain special cases” under conditions of being neither in conflict with work’s “normal exploitation” nor prejudicing author’s “legitimate interests.”169 Moreover, its introduction was to harmonize member states’ different copyright exception practices, and according to United International Bureaux for the Protection of Intellectual Property (the then WIPO), “a major consideration for exceptions in national laws was that such exceptions not enter into economic competition with the right holder.”170 The test protects right holders’ “significant or tangible commercial gains”—the normal extraction of copyright’s economic value, which sets a limit on copyright exceptions.171 The test, therefore, was to confine the exclusive reproduction right within significant commercial gain, but by no means could it justify any access control or copyright abuse. Most importantly, “legitimate interests” are “used to help define the scope of an intellectual property right or rights by helping to ascertain the nature of the rights and carve out the exceptions as to what is expressly stated to be a right or rights.”172 The test’s delineation of right holders’ “legitimate interests” sets the boundary between copyright and limitations or exceptions. Under the InfoSoc

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Directive, for example, optional copyright exceptions and limitations are subject to the three-step test.173 According to Infopaq case, the assessment of an exception meeting the three-step test was referred to other factors such as whether it had “independent economic significance.”174 Furthermore, the three steps should be considered sequentially and that “the test constitutes a single analytical whole and serves the ultimate goal to strike an appropriate balance”.175 The “independent economic significance,” where right holders’ “legitimate interests” are protected under the three-step test finally rest, is indeed the core of right holders’ exclusive right. As the test under the Berne Convention “gives to member countries the power to cut down this exclusive right of reproduction,”176 what is beyond the legitimate interests of the “independent economic significance” falls out of copyright protection. Thus, analysis of copyright limitations and the three-step test’s delineation of “legitimate interests” shows an in-built tension between right holders’ exclusive interests and the policy consideration for users and general public—an inherent ontological balance between authorship, readership, and entrepreneurship. 5.3.3 Ontological Balance of Interests in the Internet Treaties and TRIPS In fact, the tension between rights and obligations was deeply rooted in the WIPO Diplomatic Conference that led to the birth of the Internet Treaties. When the WIPO organized the First Session of Committee of Experts in 1991, the issue of technological protection measures was not on the discussion agenda.177 It was raised as one of the “New Items” under the issue of “Enforcement of Rights” in the Third Session of the Committee of Experts in 1993.178 Under the understanding that copy-protected circumvention and broadcast decryption undermine “the normal exploitation of the works” and could cause serious prejudice to the interests of the right holders, these activities were considered as “violations of the protected rights and should be sanctioned in a way similar to that of other kinds of infringements.”179 Within this context, infringement was defined as “a violation of any right protected under the protocol, whether the right is a moral right, an exclusive right of authorization or a right to remuneration.”180 As a result of the general debate of the session, it was concluded that “future discussions on enforcement should take place on the basis of the GATT/TRIPS text.”181 The negotiation history indeed indicates that the treaty framework focused on the enforcement of rights rather than the creation of any new right. In the Fourth Session of the Committee of Experts, although all delegations and observers expressed support in principle, views varied as to the nature of the provisions and linkages with existing civil and criminal measures, and concerns about the impediment to the free flow of ideas and impacts on fair use were also raised.182 Most importantly, issues remained about “who should be the beneficiaries of the rights to be recognized, what should be the link with existing enforcement mechanisms and other laws, as well as on the nature of the link with copyright legislation.”183 Proposals in treaty language were finally submitted by Argentina, Brazil, and the USA at the Sixth Session,184 and by the European Commission in the Seventh

136 The Origin of Copyright Session.185 While the need for an anti-circumvention protection was agreed upon, many issues relating to the criteria of knowledge, definition of circumvention measures and unlawful acts, as well as the interface with copyright and other legislation, remained unclear.186 Eventually, while the Article 13(1) of the Basic Proposal I 1996 mirrored the US and EU approach, Article 13(2) took clear inspiration from the EU proposal. The purpose of these Sessions was clearly to improve rights enforcement rather than to create new rights. The Geneva Diplomatic Conference revealed an unfortunate divide between private rights and public interests. On the one hand, various countries, mostly in the developing world, registered their concerns regarding negative impacts from different aspects of a public interest perspective. On behalf of the African group, the Ghanaian delegation strongly opposed “the inclusion of those Articles in their present form” and suggested deletion of the provisions, as “developing countries would be unable to implement such provisions.”187 The South African delegation concurred and recognized it as a “real problem” and registered concerns that “there was a danger that no provision could be adopted relating to technological measures.”188 The Nigerian and Senegalese delegations expressed support to the Ghanaian and South African delegations, respectively.189 The Chinese delegation similarly suggested deleting both provisions on “Obligations concerning Technological Measures”.190 For others, while the Singaporean Delegation was concerned about the possible negative impacts on “personal, scientific and educational uses,”191 the Australian delegation worried about the potential restriction of access to off-copyright material.192 The delegation of South Korea also expressed “concern on possible abuses of technological measures by authors or other right holders,” and suggested that contracting parties should have the power to condition its application to avoid overprotection.193 The Canadian delegation, too, expressed concerns that the provisions might interfere with “access to works in the public domain or restrict access under fair use or fair dealing provisions or of specific exceptions.”194 The USA, on the other hand, “strongly supported the inclusion of provisions concerning technological measures.”195 For the USA, the safeguards that the mechanism offered to right holders “were critical if the Internet were to develop into a fully mature and truly global marketplace for information and entertainment products for consumers in countries around the world.”196 Similarly, the EC delegation, although acknowledging the need “to achieve the right balance of rights and interests,” considered the mechanism “particularly important in order to ensure the effective protection of works and other subject matter in the new digital environment.”197 The British delegation“observed that the provisions on technological measures were an essential underpinning of copyright and neighboring rights in the digital age.”198 Other delegations, including from Australia, Norway, and Hungary, also indicated their preference for anti-circumvention provisions.199 Owing to insufficient experience in circumvention protection in copyright law, controversies about the definition and characteristic features of circumvention protection, and the potential implementation difficulty and the possible abuse of the technological measures, some African countries proposed a less detailed and more flexible proposal.200 This proposal in fact “represented a compromise, which representatives

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of the private sector, mainly from the US, have arrived at.” This proposal was then accepted with a couple of minor changes to the text. Therefore, the Internet Treaties have not done a very good job at all of maintaining the balance between the tension between idea and expression or between private rights and public interests. The contention between copyright holders’ exclusive access control and the public’s access to information, as seen in anti-circumvention implementation, perfectly reflects the inherent tension between rights and obligations—a balance that should be imperative to maintain, according to TRIPS philosophy. TRIPS negotiations started in September 1986, at a critical moment “when the negotiations between developed and less-developed countries over the revision of the Paris Convention were deadlocked at WIPO.”202 While the legal text “A” from developed countries emphasizes the domestic enforcement and the applicability of GATT dispute settlement mechanism to TRIPS disputes, the “B” text from a dozen developing countries focuses on maintaining flexibility to implement economic and social development objectives.203 India, for example, suggested that only the restrictive and anti-competitive practices of the IPR owners “can be considered to be trade-related,” and the negotiation “should be governed by the concerns and public policy objectives,” including “developmental and technological objectives.”204 When it became clear that the significance of TRIPS negotiations would certainly go beyond counterfeiting and piracy matters, the developing countries insisted on including the issue of anticompetitive practices into the TRIPS framework.205 The Uruguay final text mirrored the “A” text and “embodied norms that had been accepted by industrialized countries,” while developing countries’ concerns were reflected in large part in Articles 7 and 8 of TRIPS.206 Their concerns about the control of IPR abuses and the “pernicious effects” of some contractual practices eventually became Articles 8.2 and 40 of TRIPS.207 Therefore, going beyond the incorporation of the Berne Convention and recognition of the idea-expression dichotomy doctrine, TRIPS emphasizes the need to balance private interests and public concerns. According to TRIPS, intellectual property protection should contribute “to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”208 TRIPS recognition of the exclusive interests of IPRs comes together with permission that members may balance the exclusive rights with certain limitations and exceptions. It is within this context that TRIPS provides exceptions to copyrights in Article 13, exceptions to trademark rights in Article 17, exceptions to industrial designs in Article 26(2), and exceptions to patent rights in Article 30, all of which are required in order to not conflict with right holders’ “normal exploitation” and “legitimate interests.”209 TRIPS philosophy of the balance of rights and obligations holds significant sway over treaty interpretation in the international intellectual property regime. The TRIPS negotiations were concluded on the assumption that the issue of the control of IPR’s antitrust abuse would be put on the agenda later. TRIPS conclusion was therefore an unfinished story, to be completed on contracting parties coming into agreement later on antitrust control of IPR abuse for a balance of rights and obligations.210 Competition as one of the “Singapore issues” was initiated at the

138 The Origin of Copyright 1996 Singapore Ministerial Conference, yet was unfortunately dropped from the Doha agenda in the 1 August 2004 decision, owing to a lack of consensus.211 Keeping in mind that the circumstances of treaty conclusion provides an ideal “supplementary mean of interpretation” under VCLT 1969,212 the evolution of TRIPS’ negotiations and birth as an unfinished story carries significant weight in our analysis of the tension between rights and obligations. The tension indeed not only confirms the inherent tension between idea and expression and between private rights and public concerns, but also mirrors the tension between the right to intellectual property and the freedom to information as seen in anti-circumvention contentions. The mutual concession between developing and developed countries serving as the foundation of TRIPS conclusion indicates that the balance between rights and obligations is indeed imperative rather than just for convenience. As a WTO Panel stated, TRIPS objectives and principles set out in the Agreement “are to be borne in mind when specific provisions of the [TRIPS] Agreement are being interpreted in their context and in light of the object and purpose of the Agreement.”213 The WIPO Internet Treaties, although forming no part of the WTO framework, are still related closely to the WTO framework, as they “serve to update the TRIPS obligations, creating a modern and comprehensive framework of rights for the digital age.”214 It was also stated very clearly that the WCT 1996 “neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.”215 For the Internet Treaties as a whole, or the technology-copyright dynamics in anti-circumvention in particular, TRIPS philosophy of the balance of rights and obligations is indeed imperative and subject to no derogation. The ontological balance between authorship, readership, and entrepreneurship is indeed the Hegelian “prerogative and the principle of the organic” inherent to the copyright regime, and a balance was broken by the final straw of technology’s support enabling copyright’s access control in an anti-circumvention regime.

5.4 Conclusion: Technological Advances’ Copyright Onto-Epistemology As printing technology enabled the birth of modern authorship, together with growing proprietary interests and facilitated public learning, copyright went modern in the Statute of Anne 1710. Copyright development ever since then, going global in Berne Convention 1886 and then TRIPS 1995’s incorporation into global trade, has always aimed at a balance of rights and obligations. Technology thus far has always only been the driver of copyright development. The Internet Treaties inaugurated copyright’s shift to the digital era in response to more recent technological advances. In addition to creating new online rights, member states are under an anti-circumvention obligation to ensure adequate legal protection and remedies against the circumvention of technological measures protecting copyrights. The implementation of the anti-circumvention obligation varies ranging from the DMCA’s emphasis on access control to the EU InfoSoc Directive’s focus on use control.

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Starting from the small issue of controlling game console piracy, Hong Kong’s 2007 Amendment somewhat resembles DMCA’s access control mechanism without much careful consideration of copyright exceptions. The prohibition of encryption technology distribution and the introduction of the access control protection in these implementations, in particular in the DMCA and the 2007 Amendment, suggest that technology becomes the driver as well as the bearer of the copyright protection. For Hong Kong, the creation of the all-embracing access control right and the unfortunate failures of the following attempts in the 2011 Bill and 2014 Bill introducing copyright exceptions for the digital age bring the Hong Kong copyright regime into a terrain of uncertainty. The ontological balance of rights and obligations, if it ever existed in the analogue world, has been certainly broken in favor of right holders, owing to the unchecked all-embracing access control right in the digital world. To make things worse, efforts of copyright reform for the counter-balancing sake of introducing copyright exceptions, which started at around the same time, to balance the defective right expansion in the 2007 Anti-circumvention Amendment, failed in the attempts of both the 2011 and 2014 Bills. The ontological balance broken by technology’s anti-circumvention support in the 2007 Amendment remains unfixed and outstanding in Hong Kong. The technology-copyright dynamics examined in this chapter have onto-epistemological significance beyond Hong Kong. The critique of the nature of copyright as private and negative right suggests that implementing anti-circumvention to establish access control, turning copyright to “negative right in rem,” finds little support from traditional copyright theory. Conversely, it violates the centuries-long effort to distinguish copyright’s limited proprietary interest of expression from perpetual property control of knowledge, starting from the Statute of Anne. The chapter’s critical examination of copyright limitations and exceptions reveals copyright’s inherent need to balance idea and expression, or to balance rights and obligations—the center of the intersection where the anti-circumvention issue evolves. Further examination of the evolution of the treaty frameworks from the Geneva Diplomatic Conference leading to the birth of the Internet Treaties to TRIPS negotiations reveals that the balance of rights and obligations is indeed imperative and the Hegelian “prerogative and the principle of the organic” of the copyright regime. The contrasting anti-circumvention implementations from the DMCA, to the InfoSoc Directive, to the 2007 Amendment and beyond have raised the issue of imbalance in copyright protection in copyright reform for the digital age. Technology was not used to facilitate the imperative balance of rights and obligations, but was rather used to break the ontological balance inherent in copyright between authorship, readership, and entrepreneurship.

Notes 1 Paul Goldstein, Copyright’s Highway: from the Printing Press to the Cloud (Stanford, CA: Stanford University Press, 2019, 2nd ed.), 17. 2 The two treaties under the World Intellectual Property Organization (WIPO) administration, the WIPO Copyright Treaty 1996 (WCT) and the WIPO Performances and Phonograms Treaty 1996 (WPPT), are known together as the “Internet Treaties.”

140 The Origin of Copyright 3 17 U.S.C. 1201. Pub. L. No. 105–304, 112 Stat. 2860. An Act to amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes, adopted by 105th Congress of the US, the Digital Millennium Copyright Act 1998. 4 Art. 6, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society (Official Journal L 167, 22 June 2001 P. 0010–0019, thereafter, the InfoSoc Directive). 5 The European Parliament’s plenary session in Strasbourg adopted the 2019 Directive on Copyright in the Digital Single Market in March 2019 which marked a further move of the modernization of the copyright rules and copyright reform for the digital age. EU Member States will have until mid-2021 to implement it into their national laws. According to the European Commission, the Copyright Directive creates “a comprehensive framework where copyrighted material, copyright holders, publishers, providers and users can all benefit from clearer rules, adapted to the digital era.” See European Commission (26 March 2019), Fact Sheet: Questions and Answers−European Parliament’s vote in favour of modernised rules fit for digital age, available at: http://europa. eu/rapid/press-release_MEMO-19-1849_en.htm (accessed 22 December 2020). 6 Legislative Council (LegCo), Hong Kong, Copyright (Amendment) Ordinance 2007 (Ordinance No. 15 of 2007), passed on 27 June 2007. Available at: www.legco.gov. hk/yr06-07/english/ord/ord015-07-e.pdf (accessed 22 December 2020). 7 The Commerce and Economic Development Bureau, Hong Kong, “Copyright Protection in the Digital Environment” (2006). Available at: www.info.gov.hk/archive/con sult/2007/digital_copyright_e.pdf (accessed 22 December 2020). 8 See, eg, Wenwei Guan, “When Copyrights Meet Human Rights: ‘Cyberspace Article 23’ and Hong Kong’s Copyright Protection in the Digital Era,” 42(3) Hong Kong Law Journal (2012), 785–808; Wenwei Guan, “Fair Dealing Doctrine Caught between Parody & UGC Exceptions: Hong Kong’s 2014 Copyright Amendment and Beyond,” 45(3) Hong Kong Law Journal (2015), 719–742; Wenwei Guan, “Copyright v Freedom of Contract: The ‘Contract Override’ Issue in Hong Kong’s Copyright Amendment,” 47(1) Hong Kong Law Journal (2017), 115–142. 9 Art. 11, the WCT; Art. 18, WPPT. According to the Art. 11 of the WCT, for example, Contracting Parties “shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures” that are used by authors in accordance with their rights under the Berne Convention and that restrict unauthorized or illegal acts. 10 See Tom W. Bell, “Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine,” 76(2) North Carolina Law Review (1998), 557, 618; also, Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (California: Stanford University Press, 2003, Revised Edition), 185–216; and Trotter Hardy, “Property (and Copyright) in Cyberspace,” 1996(1) University of Chicago Legal Forum (1996), 217, 235–236, 241–242. 11 See, Dan L. Burk and Julie Cohen, “Fair Use Infrastructure for Rights Management Systems,” 15(1) Harvard Journal of Law & Technology (2001), 41, 47–54; Dan L. Burk, “Anticircumvention Misuse,” 50, UCLA Law Review (2003), 1095; Pamela Samuelson, “Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised,” 14(1) Berkeley Technology Law Journal (1999), 519; also, Niva Elkin-Koren, “Copyrights in Cyberspace – Rights without Laws?” 73(4) Chicago-Kent Law Review (1998), 1155, 1164–1165. 12 Eldred v. Ashcroft, 537 US 186, 219 (2003). Emphasis in the original. 13 Golan v. Holder, 132 S Ct 873, 889–890 (2012). 14 World Intellectual Property Organization (WIPO), “WIPO Internet Treaties.” Available at WIPO official site at: www.wipo.int/copyright/en/activities/internet_ treaties.html (accessed 22 December 2020).

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15 Art. 11, WCT. See also, Art. 18, WPPT. 16 Intellectual Property Department, Hong Kong, “Internet Treaties take effect in Hong Kong SAR from 1 October,” available at: www.ipd.gov.hk/eng/Press_Relea se_e_1001.pdf (accessed 22 December 2020). 17 See Guan, “When Copyrights Meet Human Rights,” 787–788. 18 LegCo, Hong Kong, “Report of the Bills Committee on Intellectual Property (Miscellaneous Amendments) Bill 2000,” (LC Paper No. CB(1) 1904/99–00). Available at LegCo official site at: www.legco.gov.hk/yr99-00/english/hc/papers/ cb1-1904.pdf (accessed 22 December 2020). 19 LegCo, Hong Kong, “Legislative Council Brief: Copyright (Suspension of Amendment) Bill 2001,” CIB 09/46/12), para. 2. 20 Ibid., paras 7–9. 21 Commerce, Industry and Technology Bureau, Hong Kong, “Review of Certain Provisions of Copyright Ordinance,” December 2004, para. 6.3. Available at Hong Kong IPD official site at: www.ipd.gov.hk/eng/pub_press/consultation/Consulta tion_Document_eng.pdf (accessed 22 December 2020). 22 s. 273.2, Copyright Ordinance (Cap 528). Emphasis added. 23 LegCo, Hong Kong, Legislative Council Panel on Commerce and Industry: “Proposals on Various Copyright-Related Issues,” CB(1)1792/04–05(05), Annex B, Views received in the consultation exercise. Available at LegCo, Hong Kong official site at: www.legco.gov. hk/yr04-05/english/panels/ci/papers/ci0621cb1-1792-5e.pdf (accessed 22 December 2020). 24 Ibid. 25 s. 273(2), Cap 528 (Added 15 of 2007 s. 69). 26 CEDB, Hong Kong, 2008 Digital 21 Strategy: continuing to build on our strengths through technology across the community (December 2007). Available at: www.ogcio. gov.hk/en/news/publications/doc/2008D21S-booklet.pdf (accessed 22 December 2020). 27 Other criminal provisions under Cap 528 include ss. 118, 119A, 119B, 120, 124, and 130. 28 Hong Kong LegCo Minutes, 14910–14911 (June 2012). 29 s. 273D, Cap 528 (Added 15 of 2007 s. 69). 30 s. 273H, Cap 528 (Added 15 of 2007 s. 69). 31 The Hong Kong Government initiated a public consultation on “Copyright Protection in the Digital Environment” in 2006 and issued a “Preliminary Proposal for Strengthening Copyright Protection in the Digital Environment” for further public engagement in 2008, where the final report of the public consultation, “Proposals for Strengthening Copyright Protection in the Digital Environment,” was released in November 2009. These Reports other than the last one are available at www.ipd.gov.hk/eng/intellectual_property/copyright/digital_environment.htm (accessed 22 December 2020). The last one, “Proposals for Strengthening Copyright Protection in the Digital Environment” (November 2009), is available at Hong Kong LegCo official site at: www.legco.gov.hk/yr09-10/english/ panels/ci/papers/ci1117cb1-341-8-e.pdf (visited 22 December 2020). 32 LegCo, Hong Kong, “LegCo Brief: Copyright (Amendment) Bill 2011,” CITB07/ 09/17, para. 3. Available at: www.legco.gov.hk/yr10-11/english/bills/brief/b35_ brf.pdf (accessed 22 December 2020). 33 LegCo, Hong Kong, “Copyright (Amendment) Bill 2011,” gazetted 3 June 2011. Available at LegCo official site: www.legco.gov.hk/yr10-11/english/bills/ b201106033.pdf (accessed 22 December 2020). 34 See Guan, “When Copyrights Meet Human Rights,” 792–795. 35 See Guan, “Copyright v Freedom of Contract,” 118. 36 CEDB, Hong Kong, “Treatment of Parody under the Copyright Regime Consultation Paper.” Available at: www.gov.hk/en/residents/government/publication/con sultation/docs/2013/Parody.pdf (accessed 22 December 2020).

142 The Origin of Copyright 37 See Guan, “Copyright v Freedom of Contract,” 118–119. 38 Report of the US Senate Committee on the Judiciary: The Digital Millennium Copyright Act of 1998 (S. Rep. No. 105–190), 1–2 (1998). 39 S. Rep. No. 105–190, 2 (1998). 40 David Nimmer, “A Riff on Fair Use in the Digital Millennium Copyright Act,” 148 (3) University of Pennsylvania Law Review (2000), 673, 674–675. 41 Report of the US House of Representative Committee on the Judiciary: The Digital Millennium Copyright Act of 1998 (H.R. Rep. No. 105–551), pt. 1, 9–10 (1998). 42 17 U.S.C. 1201(a)(1)(A). 43 17 U.S.C. 1201(a)(2). 44 17 U.S.C. 1201(b). 45 17 U.S.C. 1201(a)(1), 1201(a)(2). 46 H.R. Rep. No. 105–551, pt. 1, 18 (1998). 47 According to the Committee (H.R. Rep. No. 105–551, pt. 1, at 18 (1998)), these laws include: 17 U.S.C. § 1002(a) (prohibiting the import, manufacture, or distribution of digital audio recording equipment lacking specified characteristics and prohibiting the import, manufacture, or distribution of any device, or the offer to perform any service, the primary purpose or effect of which is to circumvent the serial copy management system required for digital audio equipment); 47 U.S.C. § 553(a)(2) (prohibiting the manufacture or distribution of equipment intended for the unauthorized reception of cable television service); and 47 U.S.C. § 605(e)(4) (prohibiting the manufacture, assembly, import, and sale of equipment used in the unauthorized decryption of satellite cable programming.) 48 65 FR (27 October 2000), 64557. Of course, section 1201(b)’s use control has also access-preventing implications. According to the House of Representatives Committee on Commerce, “it is very important to emphasize that Section 102(b)(1) is aimed fundamentally at outlawing so-called ‘black boxes’ that are expressly intended to facilitate circumvention of technological protection measures for purposes of gaining access to a work.” See, H.R. Rep. No. 105–551, pt. 2, 39 (1998). 49 65 FR (27 October 2000), 64557. 50 H.R. Rep. No. 105–551, pt. 2, 35 (1998). 51 Ibid. 52 Ibid., 35–36. 53 Ibid., 36. 54 Ibid., 35. 55 Ibid., 36. 56 Ibid. 57 Ibid. 58 17 U.S.C. 1201(a)(1)(A). 59 17 U.S.C. 1201(a)(1)(B). 60 17 U.S.C. 1201(a)(1)(C). After each rulemaking procedure, the Librarian of Congress upon the recommendation of the Register of Copyrights who consults with designated government agencies will announce the Final Rules. This rulemaking procedure has been conducted seven times since DMCA’s enactment. October 2000’s Final Rules of the first rulemaking procedure exempt two classes of works, including website compilations blocked by filtering software and access-protected literary works, computer programs and databases un-accessible due to malfunction, damage, or obsoleteness. The list of access control circumvention exceptions has been growing ever since, reaching 4 classes in the second triennial rulemaking procedure concluded in 2003 to 12 classes in the seventh triennial rulemaking procedure concluded in 2018. See, U.S. Copyright Office, Library of Congress, “Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies: Final Rule,” 65 FR 64556, 64574 (27 October 2000), 68 FR 62011, 62018 (31 October 2003), 71 FR 68472, 68479–68480 (27 November 2006), 75 FR 43825, 43839 (27 July 2010), 77

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61 62 63 64 65

66 67 68 69 70 71

72 73 74 75 76 77 78

79

80 81 82 83 84 85 86 87 88

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FR 65260, 65278–65279 (26 October 2012), 80 FR 65944, 65961–65964 (28 October 2015), and 83 FR 54010, 54028–54031 (26 October 2018). 17 U.S.C. 1201(c)(1). 17 U.S.C. 1201(d)-(j). H.R. Rep. No. 105–551, pt. 1, 18 (1998). Ibid. 65 FR 64556, 64571 (27 October 2000). Emphasis original. During the procedure, the Higher Education Associations included the Association of American Universities, the National Association of State Universities and Land Grant Colleges, and the American Council on Education. Within a broad class of “fair use works”, the Higher Education Associations proposed the specific classes that are most likely to be used by libraries and educational institutions for purposes of fair use, including scientific and social databases, textbooks, scholarly journals, academic monographs and treatises, law reports and educational audio/visual works. 80 FR 64944, 65960 (28 October 2015). Ibid. Ibid. Glynn S. Lunney Jr. “The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act,” 87(5) Virginia Law Review (2001), 813, 829–830. EC Commission, “Green Paper on Copyright and the Challenge of Technology,” Brussels, 31 January 1989, COM(88) 172, paras. 3.6.4–3.6.5. Art. 7(1)(c), Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (Official Journal L 122, 17/05/1991 P. 0042–0046). The Directive was then amended by Directive 91/98/EEC, and codified in Directive 2009/24/EC (L 111, 5.5.2009). Explanatory Memorandum, COM(97) 628, at 33 (1997). Emphasis added. Recital 47, the InfoSoc Directive. Arts. 6(1) and 6(2), the InfoSoc Directive. Art. 6 (2), the InfoSoc Directive. Art. 6(3), the InfoSoc Directive. Emphasis added. Ibid. Emphasis added. EU Commission, “Proposal for a European Parliament and Council Directive on the harmonization of certain aspects of copyright and related rights in the Information Society,” Official Journal of the European Communities (submitted by the Commission on 21 January 1998), C 108, 7.4.98. Emphasis added. EU Commission, “Amended Proposal for a European Parliament and Council Directive on the harmonization of certain aspects of copyright and related rights in the Information Society,” Official Journal of the European Communities (submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 25 May 1999), C 180, 25.6.1999. Emphasis added. Art. 6(4), the InfoSoc Directive. Emphasis added. Recital 43, the InfoSoc Directive. Recital 40, the InfoSoc Directive. Recital 51, the InfoSoc Directive. Recital 51, the InfoSoc Directive. See also, Art. 6(4), the InfoSoc Directive. Art. 6(4), the InfoSoc Directive. De Wolf & Partners, Study on the Application of Directive 2001/29/EC on Copyright and Related Rights in the Information Society, Commissioned by the European Commission (PN/2009–35/D) (European Union, 2013), 437. Ibid., 436. L. Guibault et al., Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and

144 The Origin of Copyright

89 90 91 92 93 94 95 96 97 98 99

100 101

102

103 104 105 106 107 108 109 110 111 112

113 114 115

Related Rights in the Information Society, Report to the European Commission Part I, 2007 (thereafter, InfoSoc Directive Implementation Report, Part I), 66. InfoSoc Directive Implementation Report, Part I, 133. G. Westkamp, The Implementation of Directive 2001/29/EC in the Member States, Report to the European Commission Part II, 2007 (thereafter, InfoSoc Directive Implementation Report, Part II), 66–67. InfoSoc Directive Implementation Report, Part II, 67. InfoSoc Directive Implementation Report, Part II, 69. Art. 75(5), Code of Copyright and Related Rights. Art. 75d, Consolidated Act on Copyright 2014. According to the provision, a rightholder, upon request, might be ordered to enable a user to benefit from relevant limitations under the Copyright Act. InfoSoc Directive Implementation Report Part II, 70. InfoSoc Directive Implementation Report Part II, 70. Dennis W.K. Khong, “The Historical Law and Economics of the First Copyright Act,” 2(1) Erasmus Law and Economics Review (2006), 35, 37–42. H.R. Rep. No. 105–551, pt. 1, at 17 (1998). 17 U.S.C. § 1204. According to the provision, circumvention of copyright protection systems in violation of the DMCA, willfully and for purposes of commercial advantage or private financial gain, is subject to criminal penalty of up to 5 years imprisonment or a fine up to $500,000 or both for a first offense, and up to 10 years imprisonment or a fine up to $1,000,000 or both for the second or subsequent offense. 18 U.S. Code § 2315. It is under the same chapter—Chapter 113, “Stolen Property”— with 18 U.S. Code § 2319, “Criminal infringement of a copyright.” According to the legislators, the reason the post-access ban covers only devices is for the consideration of avoiding penalties over acts circumventing copyright protection under fair use doctrine. See S. Rep. No. 105–190, at 29 (1998); H.R. Rep. No. 105–551, pt. 2, 39 (1998). Jane C. Ginsburg, “From Having Copies to Experiencing Works: the Development of An Access Right in U.S. Copyright Law,” 50 Journal of the Copyright Society of the U.S.A (2002–2003), 113, 122. See also, Kamiel J Koelman, “A Hard Nut to Crack: the Protection of Technological Measures, 6 European Intellectual Property Review (2000), 272, 274–275. Ginsburg, “From Having Copies to Experiencing Works,” 124. Los Angeles Times v. Free Republic, Civ. No. 98–7840, 2000 U.S. Dist LEXIS 5669 (C.D. Cal. Apr. 5, 2000), 67. s. 1, the UK Copyright, Designs and Patents Act 1988 (CDPA 1988). 4th Recital of the Preamble, the TRIPS Agreement. Under the EU framework, too, intellectual property is recognized as “an integral part of property.” See 9th Recital of the Preamble, the EU InfoSoc Directive. China–Intellectual Property Rights, WTO Panel Report, WT/DS362/R (26 January 2009), para. 7.247. EC−Trademarks and Geographical Indications (Australia), WTO Panel Report, WT/ DS290/R (15 March 2005), para. 7.602. Ibid., footnote 564 to para. 7.611. Emphasis added. Ibid., para. 7.246. Emphasis added. Art. 11, WCT; see also Art. 18, WPPT. Emphasis added. Art. 8, Berne Convention for the Protection of Literary and Artistic Works (as amended at Paris on July 24, 1971), thereafter the Berne Convention (1971). The Berne Convention (1971) was incorporated into the WTO framework through Article 9.1, TRIPS Agreement. Art. 9.1, the Berne Convention (1971). Arts. 11 and 11ter, the Berne Convention (1971). Art. 11bis, the Berne Convention (1971).

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127 128 129 130 131 132 133 134 135 136 137 138 139 140 141

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Art. 12, the Berne Convention (1971). Art. 9.3, the Berne Convention (1971). s. 16(1), CDPA 1988. Emphasis added. s. 16(2), CDPA 1988. Emphasis added. H.R. Rep. No. 105–551, pt. 1, at 17 (1998). Re Dickens; Dickens v. Hawksley [1935] Ch 267. See also, Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993). See, e.g., Koelman, “A Hard Nut to Crack: The Protection of Technological Measures;” Thomas Heide, “Copyright in the E.U. And United States: What ‘Access Right’?” 23 (10) European Intellectual Property Review (2001), 469–477. European Commission’s Legal Advisory Board, Reply to the Green Paper on Copyright and Related Rights in the Information Society (Legal Advisory Board, 1995). Ibid. Ibid. Scarlet Extended SA v. SABAM, C-70/10 (ECJ, 24 Nov 2011), para. 53. Emphasis added. See also, E. Bonadio & M. Santo, “ISPs cannot be ordered to adopt general and preventive filtering systems,” 7(4) Journal of Intellectual Property Law & Practice (2012), 234–236. Preamble, WCT 1996. Emphasis added. See also, Preamble, WPPT 1996, which recognizes the need of balancing the larger public interest with “the rights of performers and producers of phonograms.” Elkin-Koren, “Copyrights in Cyberspace,” 1164. Millar v. Taylor [1769] 4 Burr. 2303, 98 ER 201; Donaldson v. Becket, [1774] Hansard, 1st ser., 17 (1774): 953. Donaldson v. Becket, [1774] Hansard, 1st ser., 17 (1774): 999–1000. Lunney Jr., “The Death of Copyright,” 815. Art. 9.1, TRIPS Agreement. The application of moral rights under Article 6bis of the Convention, however, is not covered. Art. 9.2, TRIPS Agreement. See, § 102(b), US Copyright Act of 1976; Art. 2, WCT 1996. See also discussion supra 1.2.2 for more details. Baker v. Selden, 101 US 99 (1879); Kenrick v. Lawrence [1890] LR 25, QBD 99. Baker v. Selden, 101 US 99 (1879). Catherine Seville, Literary Copyright Reform in Early Victorian England: the Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999), 12. Golan v. Holder, 132 S Ct 873, 889–890 (2012). Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358, 1991 U.S. Lyman R. Patterson, Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968), 3–19. Lyman R. Patterson and S.W. Lindberg, The Nature of Copyright: A Law of User’s Rights (Athens, GA: University of Georgia Press, 1991), 126. The authors pointed out that while the Statute’s limited term of protection “creates the public domain,” the price control in section 4, library depositary requirement in section 5 and the relaxation of the censor scheme on foreign books in section 7 “suggest both a repudiation of censorship and an affirmative concern for the right of access to books.” The Statute had profound influence on modern copyright law. For example, the US Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies, was modeled after the Statute and major revisions to the Act were then implemented in 1831, 1870, 1909, and 1976. Gyles v. Wilcox, [1740] 3 Atk 143; 26 ER 489. §107 17 U.S.C., Copyright Act of 1976. Art. 10(1), Berne Convention. Art. 10(2), Berne Convention.

146 The Origin of Copyright 146 Art. 10bis(1), Berne Convention. 147 Art. 10bis(2), Berne Convention. 148 WIPO, Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) (WIPO Publication, Geneva, 1978), 58. 149 Art. 11bis(2), Berne Convention. 150 WIPO, Guide to the Berne Convention, 66. 151 Art. 13(1), Berne Convention. 152 WIPO, Guide to the Berne Convention, 78–79. 153 Ibid., 70. 154 Art. 9.1, TRIPS Agreement states, “[WTO] Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights [in relation to moral rights] conferred under Article 6bis of that Convention or of the rights derived therefrom.” 155 Eldred v. Ashcroft, 537 US 186, 219 (2003). According to the US Supreme Court (emphasis original), “[i]ndeed, copyright’s purpose is to promote the creation and publication of free expression. … In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations [including the idea and expression dichotomy and fair use].” 156 H.R. Rep. No. 105–551, pt. 2, 35–36 (1998). 157 H.R. Rep. No. 105–551, pt. 2, 36 (1998). 158 Niva Eolkin-Koren. “Copyright Policy and the Limits of Freedom of Contract,” 12 (1) Berkeley Technology Law Journal (1997), 93, 98. 159 Ibid, 99. 160 Wendy J Gordon, “Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors,” 82, Columbia Law Review (1982), 1600, 1614. 161 Ibid. 162 Lucie M.C.R. Guibault. Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright (London: Kluwer Law International, 2002), 53. 163 Ibid., 83. 164 Ibid., 100. 165 Art. 9.2, Berne Convention (1971). See WIPO, Guide to the Berne Convention, 54–57. 166 Art. 10, Berne Convention (1971). 167 Art. 10bis, Berne Convention (1971). 168 In interpreting the three-step test that is similarly worded in both Berne Convention and the TRIPS Agreement, the WTO Panel in US–Section 110(5) Copyright Act (footnote 114 to para 6.111) noted the different context with the same term: for “an exception for the reproduction right” in Berne, yet for “exception for other exclusive rights conferred by copyrights” in TRIPS. 169 WIPO, Guide to the Berne Convention, 55. 170 UNCTAD-ICTSD, Resource Book on TRIPS and Development (New York: Cambridge University Press, 2005), 188. 171 US–Section 110(5) Copyright Act, WTO Panel Report, WT/DS160/R (15 June 2000), para. 6.183. According to the Panel, We believe that an exception or limitation to an exclusive right in domestic legislation rises to the level of a conflict with a normal exploitation of the work (i.e., the copyright or rather the whole bundle of exclusive rights conferred by the ownership of the copyright), if uses, that in principle are covered by that right but exempted under the exception or limitation, enter into economic competition with the ways that right holders normally extract economic value from that right to the work (i.e., the copyright) and thereby deprive them of significant or tangible commercial gains.

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172 Mark Davison & Patrick Emerton, “Rights, Privileges, Legitimate Interests, and Justifiability: Article 20 of TRIPS and Plain Packaging of Tobacco,” 29(3) American University International Law Review (2014), 505, 528. According to the authors (p. 530), “[t]he legitimate interests of the third parties are a basis for considering whether there exists a right to exclude others from using copyrighted or patented subjectmatter, designs, and trademarks.” 173 Art 5(5), the InfoSoc Directive. 174 See European Court of Justice (ECJ), Infopaq International A/S v. Danske Dagblades Forening, Case C-302/10 (17 January 2012), 57. In this case, the ECJ gave an affirmative answer to the question whether “the scanning by a commercial business of entire newspaper articles and the subsequent processing of the reproduction” can be regarded as satisfying the InfoSoc Directive’s three-step test. Under Art 5(1) of the InfoSoc Directive, temporary reproduction for transmission purpose or for purpose of a lawful use of a work to be made which has “no independent economic significance” is exempted from copyright infringement. 175 Christophe Geiger, Daniel Gervais, and Martin Senftleben, “The Three-Step Test Revisited: How to Use the Test’s Flexibility in National Copyright Law,” 29(3) American University International Law Review (2014), 585. For more discussion on the three-step test, see Guido Westkamp, “The ‘Three-Step Test’ and Copyright Limitations in Europe: European Copyright Law between Approximation and National Decision Making,” 56(1) Journal of the Copyright Society of the USA (2008), 1–65; Andrew F Christie and Robin Wright, “A Comparative Analysis of the ThreeStep Tests in International Treaties,” 45(4) International Review of Intellectual Property and Coopetition Law (2014), 409–433. 176 WIPO, Guide to the Berne Convention, 55. 177 WIPO Committee of Experts on A Possible Protocol to the Berne Convention (First Session, Geneva, 4–8 November 1991), “Questions concerning A Possible Protocol to the Berne Convention: Part I,” BCP/CE/I/2 (18 July 1991). Issues of the Session covered applicability of the Berne Convention, works protected (which include computer programs, data bases, expert systems and computer-produced works), and producers of sound recordings. 178 WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Third Session, Geneva, 21–25 June 1993), “Questions concerning A Possible Protocol to the Berne Convention: Part III New Items,” BCP/CE/III/2-III (12 March 1993). 179 Ibid., para. 74. 180 Ibid., para. 67. 181 WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Third Session, Geneva, 21–25 June 1993), “Report adopted by the Committee,” BCP/ CE/III/3 (25 June 1993), para. 114. 182 WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Fourth Session, Geneva, 5–9 December 1994), “Report adopted by the Committee,” BCP/CE/IV/3 (9 December 1994), paras. 89–92. 183 Ibid., BCP/CE/IV/3, para. 96. 184 WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Sixth Session, Geneva, 1–9 February 1996), “Comparative Table of Proposals and Comments Received by the International Bureau,” BCP/CE/VI/12 (10 January 1996), 36–38. 185 BCP/CE/VII/1-INR/CE/VI/1, 3. 186 See, Report on the Fifth Session, BCP/CE/V/9-INR/CE/IV/8, para 350; Report on the Sixth Session, BCP/CE/VI/16-INR/CE/V/14, 48–58/ paras. 194–236. 187 WIPO, Records of the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions (Geneva: WIPO Publication, 1999), Volume II (thereafter, Records of the Diplomatic Conference), 710. 188 Ibid., 710–711. 189 Ibid., 711.

148 The Origin of Copyright 190 Chinese Delegation, “Amendments to Partly Consolidated Text of the Draft Treaty No. 1 (CRNR/DC/55),” CRNR/DC/64 (13 December 1996); and “Amendments to Partly Consolidated Text of the Draft Treaty No. 2 (CRNR/DC/58),” CRNR/ DC/71 (13 December 1996). 191 WIPO, Records of the Diplomatic Conference, 712. 192 Ibid., 714–715. 193 Ibid., 710. 194 Ibid., 711. 195 Ibid., 712. 196 Ibid. 197 Ibid., 713. 198 Ibid., 714. 199 Ibid., 714–715. 200 Delegations of Algeria and 29 other African countries, “Amendment to Articles 7, 10, 13 and 14 of Draft Treaty No.1” (Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, Geneva, 2–20 December 1996), CRNR/DC/56 (2 December 1996), 2. 201 Jorg Reinbothe & Silke von Lewinski, The WIPO Treaties on Copyright: a commentary on the WCT, the WPPT, and the BTAP (Oxford: Oxford University Press, 2015, 2nd edition), 167. 202 Peter K. Yu, “The Objectives and Principles of the TRIPS Agreement,” 46(4) Houston Law Review (2009), 982. 203 Daniel J. Gervais, “Intellectual Property, Trade & Development: The State of Play,” 74(2) Fordham Law Review (2005), 507–508. 204 Indian submission, “Standards and Principles concerning the Availability, Scope and Use of Trade-Related Intellectual Property Rights” (MTN.GNG/NG11/W/37, 10 July 1989), Communication from India to Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods, 2. 205 See Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis, 2nd ed. (London: Sweet & Maxwell, 2003), 280; Pedro Roffe and Christoph Spennemann. “Control of Anti-Competitive Practices in Contractual Licences under the TRIPS Agreement,” in Carlos M. Correa and Abdulqawi A. Yusuf, eds., Intellectual Property and International Trade: The TRIPS Agreement (The Netherlands: Kluwer Law International, 2nd ed., 2008), 317–319. 206 Gervais, “Intellectual Property, Trade & Development,” 508. 207 UNCTAD-ICTSD, Resource Book on TRIPS and Development, 543–546. 208 Art. 7, TRIPS Agreement. 209 According to a WTO Panel, all these shares a same source from the Article 9(2) of the Berne Convention. See, Canada–Pharmaceutical Patents, WTO Panel Report, WT/ DS114/R (17 March 2000), para. 7.71. The Panel states (Original footnote 420 to para. 7.71): The text of Berne Article 9(2) also served as the model for three other exceptions clauses in the TRIPS Agreement - Articles 13, 17 and 26.2, providing respectively for similar exceptions from obligations on copyright, trademarks and industrial designs. Article 13 is a nearly identical copy of Berne Article 9(2). Like Article 30, both Articles 17 and 26.2 made small changes to the text of Berne Article 9(2). 210 This is indeed TRIPS’ “birth defect,” see for more discussion at Wenwei Guan, Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014), 5–7. 211 Wenwei Guan, “Diversified FRAND Enforcement and TRIPS Integrity,” 17(1) World Trade Review (2018), 91, 114. 212 Art. 32, 1969 Vienna Convention on the Law of Treaties (VCLT 1969). See also, Robert Jennings and Authur Watts, Oppenheim’s International Law (9th ed., vol. 1. UK: Longman, 1992), 1278.

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213 Australia–Tobacco Plain Packaging (Cuba), WTO Panel Reprot, WT/DS458/R (28 June 2018), para. 7.2402. 214 International Bureau of WIPO, “The Advantages of Adherence to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)” (2002), at 10. Available at: www.wipo.int/export/sites/www/copyright/en/activi ties/pdf/advantages_wct_wppt.pdf (accessed 22 December 2020). 215 Footnote 8, Agreed Statement concerning Article 10, WCT.

Bibliography General Bell, Tom W.“Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine,” 76(2) North Carolina Law Review (1998), 557–620. Bonadio, E. and M. Santo, “ISPs Cannot be Ordered to Adopt General and Preventive Filtering Systems,” 7(4) Journal of Intellectual Property Law & Practice (2012), 234–236. Burk, Dan L.“Anticircumvention Misuse,”50 UCLA Law Review (2003), 1095. Burk, Dan L. and Julie Cohen, “Fair Use Infrastructure for Rights Management Systems,” 15 (1) Harvard Journal of Law & Technology (2001), 41, 47–54; Christie, Andrew F. and Robin Wright, “A Comparative Analysis of the Three-Step Tests in International Treaties”, 45(4) International Review of Intellectual Property and Competition Law (2014), 409–433. Commerce and Economic Development Bureau, Hong Kong. Digital 21 Strategy: continuing to build on our strengths through technology across the community, December 2007 (2008). Commerce and Economic Development Bureau, Hong Kong, “Preliminary Proposals for Strengthening Copyright Protection in the Digital Environment” (April2008). Commerce and Economic Development Bureau, Hong Kong. “Proposals for Strengthening Copyright Protection in the Digital Environment” (November2009). Commerce and Economic Development Bureau, Hong Kong. “Treatment of Parody under the Copyright Regime Consultation Paper” (11 July2013). Davison, Mark and Patrick Emerton. “Rights, Privileges, Legitimate Interests, and Justifiability: Article 20 of TRIPS and Plain Packaging of Tobacco,” 29(3) American University International Law Review (2014), 505–580. De Wolf & Partners. Study on the Application of Directive 2001/29/EC on Copyright and Related Rights in the Information Society. Commissioned by the European Commission (PN/2009–2035/D) (European Union, 2013). European Commission. “Green Paper on Copyright and the Challenge of Technology,” COM(88) 172 (Brussels, 31 January1989). Legal Advisory Board, European Commission. Reply to the Green Paper on Copyright and Related Rights in the Information Society (1995). Elkin-Koren, Niva. “Copyright Policy and the Limits of Freedom of Contract,” 12(1) Berkeley Technology Law Journal (1997), 93–114. Elkin-Koren, Niva. “Copyrights in Cyberspace – Rights without Laws?” 73(4) ChicagoKent Law Review (1998), 1155–1202. GATT Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods. “Standards and Principles concerning the Availability, Scope and Use of Trade-Related Intellectual Property Rights,” Communication from India, MTN.GNG/NG11/W/37 (10 July1989).

150 The Origin of Copyright Geiger, Christophe, Daniel Gervais, and Martin Senftleben, “The Three-Step Test Revisited: How to Use the Test’s Flexibility in National Copyright Law,” 29(3) American University International Law Review (2014), 581–626. Gervais, Daniel J. The TRIPS Agreement: Drafting History and Analysis, 2nd ed. (London: Sweet & Maxwell, 2003). Gervais, Daniel J.“Intellectual Property, Trade & Development: The State of Play,” 74(2) Fordham Law Review (2005), 505–536. Ginsburg, Jane C.“From Having Copies to Experiencing Works: the Development of An Access Right in U.S. Copyright Law,”50 Journal of the Copyright Society of the USA (2002–2003), 113–132. Goldstein, Paul. Copyright’s Highway: From Gutenberg to the Celestial Jukebox (Stanford, CA: Stanford University Press, 2003, revised ed.). Goldstein, Paul. Copyright’s Highway: From the Printing Press to the Cloud (Stanford, CA: Stanford University Press, 2019, 2nd ed.). Gordon, Wendy J.“Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors,” 82 Columbia Law Review (1982), 1600–1657. Guan, Wenwei. “When Copyrights Meet Human Rights: ‘Cyberspace Article 23’ and Hong Kong’s Copyright Protection in the Digital Era,” 42(3) Hong Kong Law Journal (2012), 785–808. Guan, Wenwei. Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014). Guan, Wenwei. “Fair Dealing Doctrine Caught between Parody & UGC Exceptions: Hong Kong’s 2014 Copyright Amendment and Beyond,” 45(3) Hong Kong Law Journal (2015), 719–742. Guan, Wenwei. “Diversified FRAND Enforcement and TRIPS Integrity,” 17(1) World Trade Review (2018), 115–139. Guibault, Lucie M.C.R. Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright (London: Kluwer Law International, 2002). Guibault, Lucie et al. Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society. Report to the European Commission, Part I, 2007. Hardy, Trotter. “Property (and Copyright) in Cyberspace,” University of Chicago Legal Forum (1996), 217–260. Heide, Thomas. “Copyright in the E.U. And United States: What ‘Access Right’?” 23(10) European Intellectual Property Review (2001), 469–477. Jennings, Robert and Arthur Watts. Oppenheim’s International Law, 9th ed., vol. 1 (London: Longman, 1992). Khong, Dennis W. K.“The Historical Law and Economics of the First Copyright Act,” 2 (1) Erasmus Law and Economics Review (2006), 35–70. Koelman, Kamiel J. “A Hard Nut to Crack: the Protection of Technological Measures,”6, European Intellectual Property Review (2000), 272–280. Lunney Jr, Glynn S. “The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act,” 87(5) Virginia Law Review (2001), 813–920. Nimmer, David. “A Riff on Fair Use in the Digital Millennium Copyright Act,” 148(3) University of Pennsylvania Law Review (2000), 673–742. Patterson, Lyman R. Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968). Patterson, Lyman R. & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights. (Athens, GA: University of Georgia Press, 1991).

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Reinbothe, Jorg and Silke von Lewinski. The WIPO Treaties on Copyright: a commentary on the WCT, the WPPT, and the BTAP. (Oxford: Oxford University Press, 2015, 2nd ed.). Roffe, Pedro and Christoph Spennemann. “Control of Anti-Competitive Practices in Contractual Licences under the TRIPS Agreement,” in Carlos M. Correa and Abdulqawi A. Yusuf, eds, Intellectual Property and International Trade: The TRIPS Agreement (Alphen aan den Rijn: Kluwer Law International, 2nd ed., 2008), 293–330. Samuelson, Pamela. “Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised,” 14(1) Berkeley Technology Law Journal (1999), 519–566. Seville, Catherine. Literary Copyright Reform in Early Victorian England: the Framing of the 1842 Copyright Act. (Cambridge: Cambridge University Press, 1999). UNCTAD and ICTSD. Resource Book on TRIPS and Development (New York, NY: Cambridge University Press, 2005). US Congress. Report of the House of Representative Committee on the Judiciary: The Digital Millennium Copyright Act of 1998 (H.R. Rep. No. 105–551), Part 1 (1998a). US Congress. Report of the Senate Committee on the Judiciary: The Digital Millennium Copyright Act of 1998 (S. Rep. No. 105–190), 1998b. Westkamp, Guido. “The ‘Three-Step Test’ and Copyright Limitations in Europe: European Copyright Law between Approximation and National Decision Making,” 56(1) Journal of the Copyright Society of the USA (2008), 1–65. Westkamp, Guido. The Implementation of Directive 2001/29/EC in the Member States, Report to the European Commission, Part II, 2007. WIPO. Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) (Geneva: WIPO Publication, 1978). WIPO. Records of the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, Vol. II (Geneva: WIPO Publications, 1999). WIPO Committee of Experts on A Possible Protocol to the Berne Convention (First Session). “Questions concerning A Possible Protocol to the Berne Convention: Part I,” BCP/CE/I/2 (Geneva, 18 July1991). WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Third Session). “Questions concerning A Possible Protocol to the Berne Convention: Part III New Items,” BCP/CE/III/2-III (Geneva, 12 March1993). WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Third Session). “Report adopted by the Committee,” BCP/CE/III/3 (Geneva, 25 June1993). WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Fourth Session). “Report adopted by the Committee,” BCP/CE/IV/3 (Geneva, 9 December 1994). WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Sixth Session). “Comparative Table of Proposals and Comments Received by the International Bureau,” BCP/CE/VI/12 (Geneva, 10 January 1996). WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions. “Amendment to Articles 7, 10, 13 and 14 of Draft Treaty No.1,” Communication from the Delegations of Algeria and 29 other African countries, CRNR/DC/56 (Geneva, 2 December 1996). WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions. “Amendments to Partly Consolidated Text of the Draft Treaty No. 1(CRNR/DC/ 55),” Communication from the Chinese Delegations, CRNR/DC/64 (Geneva, 13 December1996). WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions. “Amendments to Partly Consolidated Text of the Draft Treaty No. 2(CRNR/DC/

152 The Origin of Copyright 58),” Communication from the Chinese Delegations, CRNR/DC/71 (Geneva, 13 December1996). WIPO, International Bureau. “The Advantages of Adherence to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)” (2002). Yu, Peter K.“The Objectives and Principles of the TRIPS Agreement,” 46 Houston Law Review (2009), 979–1046.

Cases Australia–Tobacco Plain Packaging (Cuba), WTO Panel Report, WT/DS458/R (28 June 2018). Baker v. Selden, 101 US 99 (1879) Canada–Pharmaceutical Patents, WTO Panel Report, WT/DS114/R (17 March 2000) China–Intellectual Property Rights, WTO Panel Report, WT/DS362/R (26 January 2009) Re Dickens; Dickens v. Hawksley [1935] Ch 267 Donaldson v. Becket [1774] Hansard, 1st ser., 17 (1774) EC–Trademarks and Geographical Indications (Australia), WTO Panel Report, WT/ DS290/R (15 March 2005) Eldred v. Ashcroft, 537 US 186 (2003) Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991) Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993) Golan v. Holder, 565 U.S. 302, 132 S. Ct. 873 (2012) Gyles v. Wilcox, [1740] 3 Atk 143; 26 ER 489 Infopaq International A/S v. Danske Dagblades Forening, Case C-302/10, ECJ (17 January 2012). Los Angeles Times v. Free Republic, Civ. No. 98–7840, 2000U.S. Dist LEXIS 5669 (C.D. Cal. Apr. 5, 2000) Millar v. Taylor [1769] 4 Burr. 2303, 98 ER 201 Scarlet Extended SA v. SABAM, C-70/10, ECJ (24 Nov 2011) US–Section110(5) Copyright Act, WTO Panel Report, WT/DS160/R (15 June 2000)

6

Trade as the Copyright Onto-Epistemological Mechanism Free Trade Proliferation and Copyright Onto-Epistemological Integrity

The chapter examines the copyright onto-epistemological implications of the development and proliferation of regional and international free trade frameworks. Within the Greater China region, the user and the general public’s concerns about freedom of expression in Hong Kong, the public-oriented national industrial interests of trade in Mainland China, and the geopolitical rush for international integration in Taiwan reveal the diversity of copyright onto-epistemological dynamics in digital age. Most importantly, trade proliferation plays an important role during the convergence as well as divergence of copyright policies in the neo-copyright age. Not only does entrepreneurship interest become prominent in this tripartite tension, but also trade integration or segmentation will shape the neo-copyright era’s future significantly. As the proliferation of free trade tends to lead to an inevitable overemphasis of copyright entrepreneurship, the marginalization of copyright authorship and readership concerns becomes a neo copyright onto-epistemology deficit. There is a danger of the fading out of readership or public interest in checks and balances in the copyright tripartite ontological dynamics, along with the proliferation of regional trade talks, a worrisome trend that we might not want to see after 300 years of development in the neo-copyright age.

6.1 Introduction The Statute of Anne pushed copyright into the modern era in 1710, if not earlier.1 Throughout this 300 or so years of evolution, copyright went modern, global, and digital in trade.2 The Statute of Anne that hailed the birth of the copyright modern era, according to Patterson, “was not primarily a copyright statute,” but rather “basically a trade-regulation statute.”3 From a historical perspective, both English and US copyright statutes from 1790 onwards have seen an expansion of the copyright monopoly, where the right to “print, reprint and publish” evolved to “a right to reproduce a book for commercial purposes by making multiple copies on a printing process for the market.”4 The monopoly expansion eventually, according to Patterson and Joyce, is “a transformation of copyright from a monopoly for competitive, market place purposes only (‘monopoly for the market’) into a monopoly of the work per se or for all purposes (‘monopoly of the work’).”5 Along this process of development, copyright has evolved from a publisher’s competition interest in the book trade to an author’s proprietary creation with attention to public access, from domestic statutory rights to internationally DOI: 10.4324/9781003163282-6

154 The Origin of Copyright recognized creation, and from domestically policed privilege supported by censorship to internationally enforced interests in trade. Copyright, as a proprietary monopoly interest in the domestic book trade before the Statute of Anne, has constantly evolved and now reached the framework of trade in a broader trading arena with more complicated ontological dynamics between copyright authorship, entrepreneurship, and readership. Copyright, once was born in domestic book trade, has now been back in trade with greater scale and more complicated ontological complexity. Building on the above examinations on copyright ontological trilogy on free speech, secondary creation and contract override, as well as the technology-copyright onto-epistemological dynamics, this chapter turns to the critique of trade as the ontoepistemological mechanism of copyright evolution. Attention will be paid to the intersection between copyright development and regional trade negotiation and fragmentation, to offer a critical examination on how copyright onto-epistemological dynamics reveals itself in the digital age. In section 6.2, the Chapter examines local efforts amending copyright law for the digital age in Hong Kong and the mainland China, as well as the regional trade talks in Asia in relation to copyright in the digital age. The chapter suggests that the user’s and the public’s freedom of expression in Hong Kong, public-oriented trading interests in the mainland, and different national industrial interests in trade for negotiating members in the regional trade talks play an important yet different role in Asia’s copyright development in the digital age. In section 6.3, the chapter looks at how trade shapes copyright onto-epistemological dynamics between authorship, readership, and entrepreneurship in copyright evolution. Although trade’s influence over copyright dynamics in the digital age bears a certain resemblance with the significance of the private ordering of the book trade for copyright development in the early stage of copyright development, the focus of the other interests in trade that checks and balances authors’ or right holders’ rights varies. Based on the diverse experience in Asia, the user’s and the public’s freedom of expression and the country’s industrial interests in trade play significant roles in shaping copyright development in the digital age. The chapter concludes in section 6.4 with a call for more attention to how fragmentation of international trade and the proliferation of regional trade negotiations influence copyright development and its implications for copyright onto-epistemological dynamics between authorship, readership, and entrepreneurship in the digital age.

6.2 Individual Expression in Trade and Copyright’s Being 6.2.1 The Intra-play of Politics and Internet Freedom and Copyright’s Being Hong Kong has been world’s busiest port for decades and dominated in particular in the 1990s and early 2000s, and maintaining its status as the world’s leading ICT hub continues to be Hong Kong Government’s priority.6 The 2007 Copyright Amendment’s successful incorporation of copyright anti-circumvention mechanism was praised as a successful effort, creating a conducive business environment to develop Hong Kong as a hub for technological cooperation and trade.7 Hong

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Kong’s failed decade-long copyright reform for the digital age, as discussed in previous chapters, however, has not been innovation- or trade-related, rather dominated by concerns of free speech in various aspects. Modeled on the UK’s Copyright, Designs and Patent Act 1988 (CDPA) and since its enactment in 1997, Hong Kong’s Copyright Ordinance (Cap 528) has been amended several times, addressing to tension between copyright holder and social public in the analogue era.8 To follow the copyright regime’s paradigm shift from analogue to digital age led by the World Intellectual Property Organization (WIPO)’s two 1996 Internet Treaties and the US 1998 Digital Millennium Copyright Act (DMCA), Hong Kong started a public consultation on “Copyright Protection in the Digital Environment” in 20069 and signed the WIPO Internet Treaties in 2008. Various interrelated issues have stirred up public controversy and eventually led to the failures of the copyright amendment in Hong Kong in both 2012 and 2016. The failure of the attempt to introduce the Copyright (Amendment) Bill 2011, for example, mostly lies in the public’s distrust of the Bill owing to the introduction of the criminal sanction to protect “technology neutral” communication rights yet without any copyright exception added for parody to accommodate free speech.10 The Copyright (Amendment) Bill 2014’s introduction of the parody exception, although addressing the previously raised parody exception issue, failed to respond to the public’s call for copyright exceptions for user-generated content (UGC) in the context of free speech through secondary creation, which led to the eventual failure of penetrating the blockade to the 2014 Bill.11 The Legislative Council (LegCo) Members Committee Stage Amendments concentrated on issues of UGC, fair use, and contract override amendments,12 which are believed to be the key factors leading to the eventual failure of the 2014 Bill. Local political concern instead of innovation or trading interest has dominated and led to Hong Kong’s early effort of copyright amendment for the digital age. The Copyright (Amendment) Bill 2011 (the 2011 Bill) was introduced into LegCo in June 2011. The purpose of the amendment as set out in the 2006 consultation was to better adapt copyright protection to the advances of information technology and the development of broadband infrastructure in the digital era. Key issues included the introduction of an “all embracing right of communication,” online service providers’ liability, and the mechanism facilitating civil actions against internet piracy.13 The 2011 Bill’s provision of the all-embracing and exclusive right of communication to right holders and the criminalization of unauthorized communication, however, triggered intense public debates, and came to an end upon the expiry of the the then LegCo’s term in July 2012. Although copyright and free speech share with each other ontological interdependence in defense of individual autonomy against unwarranted government intrusion, politics’ dominance over the amendment process led to the failure of the 2011 Bill. Learning from the failure of the 2011 Bill, the Hong Kong Government started a new round of consultation on parody treatment in 2013,14 and a new fair dealing exception covering parody works was successfully introduced in the Copyright (Amendment) Bill 2014 (the 2014 Bill) to appease the supporters of free speech.15 Swinging between parody exception and UGC exception, the 2014 Bill adopted the parody exception yet

156 The Origin of Copyright rejected the UGC exception proposal. The 2014 Bill presents a tiny breakthrough in the current ban on secondary creation with only limited accommodation to those uses “for the purpose of parody, satire, caricature or pastiche.” The Government, however, also committed itself to “continue to monitor closely overseas developments in copyright protection as part of our consideration in identifying and resolving further issues for any future legislative update.”16 At the later stage of the 2014 Bill’s LegCo debates, issues of concern extended beyond the UGC issue to cover issues of fair use and contract override.17 After months of filibustering at the LegCo debate stage, the Government declared in March 2016 that it would abandon the Bill, and no consultation would take place in the then Administration’s remaining term until 2017.18 Upon the then LegCo’s term’s expiration in 2016, the 2014 Bill failed to go any further. Local politics and distrust of the government continues to play a central role in discussion surrounding Hong Kong’s copyright digital reform. For Hong Kong’s decade-long amendment effort, neither entrepreneur interests of creative media or entertainment industry have been the real focus, nor have digital technology challenge and international trade factors played a significant role in amendment controversies. Copyright users and the general public’s freedom of expression or access has always been the centre of the concern—a traditional copyright concern in the pre-digital age. For more than a decade, political controversies against the government were framed as the issue of copyright over-protection against the public, and defined the focus of debates for the copyright digital reform in Hong Kong. Local political fragmentation deeply implicated with copyright digital reform reveals an invisible yet indispensable player with the authorship, readership, and entrepreneurship’s ontological complexity. Be it free speech, UGC exception, or contract override issues, local political fragmentation, rather than international free trade’s proliferation sets the onto-epistemological framework of the copyright reform for the digital age in Hong Kong. 6.2.2 Local vs Foreign Imperative of Trade and National Development In mainland China, however, copyright development has taken a different course from the Hong Kong experience, and copyright’s implications in trade have played an important role. Although mainland China has offered basic modern copyright protection since the establishment of the People’s Republic of China in 1949, not much attention had been paid either to an author’s intellectual creation or to the monopoly interest of the publisher. The central government issued the Decision on Improving and Developing Publication Undertaking in 1950, which prohibits copying, plagiarizing, and unauthorized alteration in publication to respect copyright holders’ lawful interests. In 1953 the State General Administration of Publication issued the Decision on Redress Phenomena of Arbitral Book Copying, reiterating the prohibition of publishers arbitrarily and willfully copying published books.19 During this period, government agencies, including the General Administration of Publication and the Ministry of Culture, started drafting the Provisional Regulation on Protecting the Copyrights of Published Works to offer lifelong plus 20-year copyright protection of literature and oral works, literature translation, as well as music, artistic and scientific

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pictures, and maps. The Bill was suspended owing to the outbreak of the antirightist campaign in 1957. The Ministry of Culture issued the Circular on Proper Implementation of Remuneration System and Appropriate Grasp of Remuneration Standard in August 1961.21 Under this new policy, the percentage royalty system established in 1958 was replaced with a onetime payment system, and reprinting published works no longer required payment. Copyright at this period is more of a public good than an intellectual creation with private right implications or industrial monopoly interests. When China started its era of reforms and opening in 1979, bilateral trade talks with the USA significantly influenced China’s copyright regime development. In 1979 China’s Agreement on Trade Relations with the USA marked the beginning of the restoration process of copyright protection after China’s Cultural Revolution. Under this bilateral agreement, China committed to protect copyright and offer US copyright holders protection in accordance with relevant international treaties, even if China was not one of the members.22 In 1982 the Chinese Ministry of Broadcast and Television issued the Provisional Rules on the Administration of Audio and Video Recordings, which recognizes and protects neighboring rights of copyright.23 In 1984 the Ministry of Culture issued the Provisional Regulations on the Protection of Copyrights of Books and Periodicals for internal circulation.24 In 1986 the General Principles of Civil Law offered recognition and protection of author’s rights to signature, publication, circulation, and remuneration from a basic law level.25 China’s first Copyright Law in the modern sense was promulgated in 1990 and amended twice in 2001 at around the time of China’s entry into the World Trade Organization (WTO) and a minor amendment clarifying protection on unpublished works owing to a WTO panel judgment in 2010. In July 2011 a comprehensive amendment to the Copyright Law was put on the State Council’s agenda, and a draft amendment was published by the PRC State Copyright Bureau for public consultation in March 2012.26 According to the PRC National Copyright Administration, in addition to attention to China’s local needs as well as China’s international obligation, the key principle of this amendment is to balance private right interests with public concerns.27 Upon the intensive public consultation, the National Copyright Association announced the second draft for further consultation in July 2012.28 Academic and public opinions, comprising about 1,600 submissions, significantly influenced the second draft. Changes made in the second draft include: clarification of copyright in relation to broadcasting, network transmission, and performance; orphan works copyright, radio and TV stations’ rights; statutory licensing and fair use; and collective management and technology protection measures issues.29 Based on these two rounds of public consultation, the State Council Legal Affairs Office compiled the final draft in June 2014 for public consultation before final submission to the legislative body for reading.30 In a sharp contrast with the first two amendments that were made under foreign pressure, the third amendment of the 2014 Bill, as a self-initiated effort attentive to local condition, advances of new technology, and implications for trade, was indeed rather ambitious. The 2014 Bill suggested a structural change, adding a new chapter

158 The Origin of Copyright of technological protection measures (TPMs) and rights management information (RMI) protection and new sub-chapter of new collective management. The Bill also ambitiously addressed new rights, such as resale royalty rights, orphan work protection and performers’ rental rights, together with new introduction of the three-step test and clarification of network communication rights. To strengthen copyright enforcement, statutory compensation as well lifting the upper limit on punitive damages and internet service provider (ISP) liability clarification were also suggested in the 2014 Bill. Unfortunately, the 2014 Bill was considered as overly ambitious and controversial and was thus shelved without going any further. An almost completely new 2020 Bill rolled out in April of that year, and was subsequently passed by the NPCSC in November, which concluded the third amendment of the PRC Copyright Law.31 The eventual third amendment adopted was rather conservative compared with the 2014 Bill, in particular in removing those structural changes of introducing new chapters and sub-chapters, and avoided touching controversial issues of resale royalty, orphan work protection, and the idea-expression dichotomy principle, which were considered as overly ambiguous. The removal of the right to resale royalty, for example, was due to the fear of its potential interruption of the arts auction market operation, although the recognition of the original author’s interests was largely agreed upon. Nonetheless, the eventual third amendment presented an adequate response to challenges from digital technology advances and maintained a clear character of its own. Firstly, this amendment also takes into consideration of international treaty obligations, including those of the two Internet Treaties. The rights of performers recognized in the 2012 Beijing Treaty on Audiovisual Performances32 was also included in Article 40 upon amendment. The TPM and RMI mechanism under the two Internet Treaties33 was incorporated into the Amended Copyright Law in Articles 49, 50, and 51. It is worth mentioning here that, in terms of TPM/RMI copyright protection, China is also very active in regional free trade negotiations.34 Secondly, the eventual third amendment also added the copyright collective management mechanism,35 and clarified copyright registration and common ownership mechanism,36 which will all facilitate the copyright use and trade. Moreover, the third amendment’s general consensus on clarifying exceptions (e.g. keeps computer software reverse engineering exception) on the one hand and the introduction of the punitive damages against copyright infringements on the other hand indicates the attempt at balancing rights and obligations.37 However, copyright users’ and the general public’s concerns about freedom of expression that played a significant role in Hong Kong’s decade of copyright amendment were not present in mainland China’s amendment process. Rather, public interest’s antitrust checks and balances with right holders’ monopoly interest in trade is significant. In China’s copyright shift from the one-sided attention to public concerns in the 1960s to the post-1980s attempt at balancing public and private interests, the bilateral trade talks—with the USA in particular—or the multilateral trading framework of the WTO has played a significant role.

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6.2.3 The Geopolitics vs Trade Intra-play and Interest Balancing While local politics overtook trade concerns and interfered with copyright digital reforms in Hong Kong’s decade-long attempts at implementing the WIPO Internet Treaties, mainland China’s recent copyright development reveals a pragmatic and public-oriented interest in trade. Another important Greater China jurisdiction in Asia, Taiwan’s copyright development shows a mutual implication of politics and trade in its copyright reform. Although the Qing Dynasty right before the Republic of China (ROC) had introduced the Copyright Law in 1903 and then 1915, the first copyright code was the ROC Copyright Law 1928, promulgated in mainland China and amended in 1944 and 1949 upon the ROC government’s retreat to Taiwan in 1949.38 Upon the establishment of the copyright regime, Taiwan accelerated its copyright development from 1960s onwards and amended the copyright law in 1985, 1990, 1992, and 1993, before Taiwan’s accession to the WTO in 2001. During this period, pressure from bilateral trade talks with the USA was the main drive of copyright amendments. As the 1985 amendment failed to live up to the USA’s expectation and did not solve the controversies between the two sides, the USA put Taiwan on its 301 watch list and thus substantially drove amendments to Taiwan’s Copyright Act in 1990, 1992, and 1993.39 While pre-WTO entry copyright amendments in 1998 and 2001 were clearly an effort to adapting to The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) framework, Taiwan’s copyright amendments in 2003 and 2004 were driven by US pressure for change.40 While Taiwan’s copyright amendments before 2004 were motivated by bilateral trade talks, amendments after that were largely self-initiated,41 and mostly digital ages relevant. The 2009 Amendment, for example, introduced an ISP safe harbor mechanism and a three-strike rule into the copyright regime in response to the digital environment.42 Taiwan’s recent copyright amendment effort, which started in 2008 with the first draft came out in 2014 was deeply influenced by regional trade talks, the Trans-Pacific Partnership (TPP) negotiations43. Although Taiwan is not a party to the the TPP negotiations, Taiwan’s recent efforts have aimed at achieving the TPP standard, as the Government contemplates the future possibility of joining the TPP framework. The fourth draft was passed by the Executive and moved to the Legislative in August 2016. Within this Bill, the most noticeable TPP-led changes are criminalizing TPM circumvention and the adjustment of the scope of crimes indictable for failure to comply and the new provisions regarding protection of encrypted program-carrying satellite and cable signals.44 When the US Administration under President Donald Trump withdrew from the TPP in January 2017, the negotiations continued as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) with some adjustments and was signed by the remaining TPP negotiating parties on 8 March 2018 in Chile. The recent conclusion of the Regional Comprehensive Economic Partnership (RCEP) appears to be a political pressure that led the Taiwanese Administration to seek the further opportunity of joining the CPTPP as a political counterbalance to mainland China.45

160 The Origin of Copyright The CP/TPP extends influence on Taiwan’s copyright amendment in a situation when Taiwan is not even a member of the negotiation, which indicates the significance of trade in shaping national copyright regimes. Trade’s significant influence certainly started from TRIPS’ incorporation of intellectual property after copyright went global. The deadlock of the Doha round of negotiations, however, sees the proliferation of regional trade negotiation and potential divergence and fragmentation of copyright protection through trade. The ACTA46 and CP/TPP are good examples. The proliferation of the regional negotiations certainly facilitates trade fragmentation. As Peter Yu commented, for example, the ACTA not only “posed serious challenges to the multilateral trading system” and “alter[ed] the balance in the existing intellectual property system,” but will also “provide more harm than good” to consumers.47 The recent conclusion of the RCEP, an ASEAN-initiated yet Chinese-centered regional free trade framework, shows the complexity of free trade ontological interdependence bearing significance for copyright digital reform.48 The RCEP’s give-andtake regional free trade negotiation process, in particularly as seen in the leaked Intellectual Property Chapter,49 indicates an ontological interdependence complex that sets the floor of the copyright evolution in trade, which suggests strong evidence of regional trade talks’ potential in shaping copyright regimes in the region. During the RCEP negotiations, there were some contrasting perspectives, and some digital copyright issues indicated the copyright onto-epistemological complexity. As for the control of Technology Control Measures circumvention, while ASEAN, New Zealand, China, India, Australia, and Japan propose a general requirement of providing adequate legal protection and remedies against “the circumvention of effective technological measures that are used by” right holders or authors in connection with the copyrights and restrict unauthorized or illegal acts, South Korea proposes a rather comprehensive provision on the Protection of Technological Measures.50 For the protection for electronic RMIs, Japan, Australia, and South Korea, in one way or the other, proposed that each party shall provide effective and adequate legal protection and remedies against any person performing acts or assistance to remove or alter any electronic RMIs or any dealing of RMI-removed or -altered copies. However, ASEAN, New Zealand, and China opposed the proposal.51 As for broadcasting rights, while South Korea and Australia propose a 50-year or more protection term and legal protection and remedies against willful reception or distribution of decoded encrypted program-carrying satellite signals or dealing of relevant decoding device or system, ASEAN, China, New Zealand, and India oppose that measure.52 It is important to know that, upon India’s withdrawal, the final 15 RCEP members show a complex mutual implication of trade and geopolitics in this region that sets the complicated copyright “being” for digital copyright reform in trade. Among the final RCEP members, while Japan, Australia, and New Zealand are members of the ACTA and the CPTPP, South Korea is a member of the ACTA yet not a member of the CPTPP (although it has been invited to summits and attended them). However, neither China nor India, which eventually dropped out of RCEP negotiations, is a member of the ACTA or the CPTPP. RCEP’s diverse membership naturally brings in contrasting perspectives of intellectual property

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policy. The Chinese-influenced yet not Chinese-led diverse membership of the RCEP sits in a unique position between TRIPS and the ACTA or CPTPP for shaping global intellectual property policy in trade. The RCEP’s negotiation and conclusion indeed offered several interesting insights into trade’s facilitation of copyright development in the digital age and the complexity of copyright-trade onto-epistemology. Different from the TRIPS-plus perspective in the CP/TPP framework, the Chinese-influenced yet not Chinese-led RCEP negotiations show a TRIPS-different but not TRIPS-derogated perspective. Implicated in geopolitics in the regime, diverse trade interests and industrial implications lead to contrasting copyright policy perspectives regarding copyright protection in the digital environment. Furthermore, checks and balances of either authors or copyright holders generally come from members’ trading interests rather than from either users’ or the general public’s concerns about freedom of expression. The proliferation of regional trade talks sees the return of control of copyright for regulating book trade order that was present in the pre-Statute of Anne copyright regime, yet not exactly for an author’s or the general public’s interest. A new copyright tripartite onto-epistemological dynamic between authorship, readership, and entrepreneurship in the digital age has been significantly shaped by the evolution of regional free trade.

6.3 Proprietary Expression, Trade Fragmentation, and Copyright Integrity 6.3.1 Trade, Market Failure, and Copyright Limitation The above examination of copyright’s intra-play with local political development, local vs foreign imperative of trade, and regional geopolitics complexity brings us to copyright’s integrity of individual proprietary expression in trade and the ontological balance of rights and obligations. Although the British Statute of Anne 1710 certainly marked the beginning of modern copyright,53 the history of the development of copyright protection, however, could really be longer than that. In fact, the introduction of the printing press in the late 16th century in England had fostered and developed a regime to protect published works long before the advance of the Statute of Anne. In England, the development of printed publishing after Caxton’s introduction of the printing press into England in 1476 eventually led to the Stationers’ Company’s incorporation in 1557. Under the company ordinances, “stationer’s copyright”—the “right to copy” issued and regulated by the stationers—was a private affair limited to company members and functioned in accordance with their selfinterest to provide order within the book trade.54 About 150 years before the Statute of Anne was enacted, stationer’s copyright was used as a device of government censorship and an instrument of monopoly to control the book trade between members of the Stationers’ Company.55 The book trade, rather than individual literary creation, was the real purpose of copyright protection at the very beginning of the copyright regime. It is important to know that copyright as the “basis of a monopoly in the book trade”, sanctioned by censorship and press control regulation, had been “a device for maintaining order among members of the book trade organized as the

162 The Origin of Copyright Stationers’ Company” for 150 years before the advent of the Statute of Anne. 56 The pre-Anne historical copyright regime was largely book trade-oriented rather than driven by an author’s literature creation. Upon the demise of censorship and government sanctions, the Statute of Anne’s transformation of copyright from stationer’s copyright to statutory copyright was to “restore order to the [book] trade” by enacting a copyright statute modeled on the stationer’s copyright. Indeed, the Statute of Anne was derived from the previous Licensing Act in England, a somewhat “derivative work.”57 The “transformation of a protection for publishers created by the Stationers’ Company into a corresponding right for the author created by law” was, however, considered as an ill-considered one.58 Although it might not be a well-considered one, the Statute of Anne’s “illconsidered” transformation brought in a watershed development with a longlasting significance. Historically trade-oriented and publisher-centered copyright protection had thus been changed to a competition-balanced and author-minded copyright regime, as publishers’ industrial interests in trade have to be balanced with access rights for the benefit of the public. As Patterson and Lindberg argued, the Statute of Anne “took seriously its stated purpose—the encouragement of learning—a goal that required making books available to the public.”59 Copyright historically as a private right retained by the publisher was then made into a right related to authors’ intellectual creation and readers’ access for public interest in the course of trade. The copyright Gutenbergian dynamics between authorship, entrepreneurship, and readership in the context of trade was then established and has never gone away, with only variation of different focus on one or other of the tripartite interests or variation in terms of the extent of intertwining relationship with trade. Most importantly, in the course of this transformation, “popular resentment” against the Stationers’ Company’s monopoly had been the key driver of the transformation.60 Booksellers’ perpetual “right to copy” sanctioned by government censorship now became limited in term and subjected to anti-monopoly checks and balances against authors’ rights and public access in the context of trade. Since the birth of the Statute of Anne the Gutenbergian ontological balance between authorship, entrepreneurship, and readership has been the central theme of copyright evolution. The author’s or user’s checks and balances against the publisher’s monopoly interest in trade have evolved over time and gradually gone beyond its initial definition. Fair use or fair dealing as the legal unauthorized use of copyright materials, for example, was not provided in Statute of Anne. In Gyles v. Wilcox in 174061 the English Court of Chancery established the “fair abridgement” doctrine that permits unauthorized use—abridgement in the case—of copyright works under certain circumstances. This doctrine has eventually evolved into the modern concepts of fair use and fair dealing. The Statute of Anne’s development certainly shaped copyright regime in the USA significantly. The US Constitution in 1787 confirmed that the US Congress “shall have power … to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”62 Modeled on the Statute of Anne, the US Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books

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to the Authors and Proprietors of Such Copies, was promulgated. Major revisions to the Act were then implemented in 1831, 1870, 1909, and 1976. In Folsom v. Marsh, a case brought before the Massachusetts Circuit Court in 1841, the court’s delineation of what constituted a “justifiable use of the original [copyright] materials” formed the basis of the “fair use” doctrine in the USA. Under the US Copyright Act, which incorporates the fair use doctrine, factors to be considered defining whether an unauthorized use is fair or not include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use on the potential market.63 Among the four factors of fair use, the commercial nature of the use or copyrighted work and the adverse market effect have been the fundamental factors to be considered, which indicates the fair use’s intimate implications to copyright trade. The national development and balancing of the checks and balances on fair use with the exclusive interests of copyright have certainly significantly influenced the international copyright regime. Under the Berne Convention 1971, fair use in the form of quotation64 or for teaching65, broadcasting66, or reporting current events67 has been incorporated to limit right holders’ exclusive right to exploit the work. These fair use exceptions—the unauthorized uses that are “compatible with fair practice” and “justified by the purpose—are meant “to meet the public’s thirst for information.”68 Certain compulsory licensing mechanisms have also been incorporated in the Berne Convention. For example, under the Berne Convention, the compulsory licensing mechanism in relation to author’s exclusive “Right of Broadcasting”69 was introduced in the 1928 Rome Revision when the broadcasting right was first introduced and then broadened in 1948 Brussels Revision.70 Similarly, the compulsory licensing mechanism in relation to author’s exclusive “Right of Recording Musical Works”71 was introduced in the 1908 Berlin Revision and modified through the 1948 Brussels Revision and the 1967 Stockholm Revision.72 Most importantly, the incorporation of the compulsory mechanism was “done in the interests of the public,” the spirit of which “is one of striking a fair balance between the conflicting interests.”73 The successful incorporation of the Berne Convention into international trade via the TRIPS Agreement upon the establishment of the WTO framework put the publisher vs author or user tension into a copyright trade context.74 After some 200 years of development, the Statute of Anne’s “mis-transformation” of stationer copyright’s control of the book trade to concerns about authors and users’ interests now returned back to a trade framework with a stronger enforcement infrastructure in a broader framework. The return of copyright to trade once again indicates that the central issue of copyright ontological dynamics is the conflict between private and public ordering, or an issue of copyright’s remedying “market failure.” According to Elkin-Koren, the economic rationale for copyright law is to “remedy a market failure in the dissemination of information, commonly referred to as the ‘public good’ problem.”75 Copyright law, however, also “causes another type of a market failure by creating a monopoly,” an issue of the “deadweight loss.”76 As a broad context regarding the nature of copyright exception, it has been commonly considered that a compulsory licensing scheme imposed by regulatory authorities is to correct

164 The Origin of Copyright “market distortions,” e.g. exceedingly expensive or impractical bargaining that leads to failure of consensual exchanges.77 Therefore, as Gordon argued through an economic and structural analysis, “fair use is ordinarily granted when the market cannot be relied upon to allow socially desirable access to, and use of, copyrighted works.”78 According to Guibault, too, the US Supreme Court’s jurisprudential reliance on the fourth of the four factors of the fair use analysis suggests that the fair use doctrine is essentially “a remedy to symptoms of market failure.”79 Therefore, according to Guibault, copyright laws were created “to address a market failure arising from the public good characteristics of creative works of authorship, and more specifically to cure the problem of under-production.”80 Limitations on copyright, therefore, “are an integral part of the copyright system.”81 Indeed, a line of analysis from copyright’s rationale of correcting market failure offers a good economic and structural explanation of the need for public good’s balance with private rights,82 which is one of the key areas of contention in both regional and international intellectual property-related trading regimes. From the perspective of the intra-play between copyright evolution and trade fragmentation, copyright ontological interdependence serve as a necessary fix to the “market failure,” which suggests that fair use limitation is imperative to copyright ontology. This can indeed also be found in copyright evolution in the context of free trade fragmentation both in regional and international frameworks. 6.3.2 Regional Trade Fragmentation and Copyright Onto-epistemology The above analysis shows that copyright as the “competition” law for domestic book trade was eventually limited by the economic rationale of remedying “market failure,” a balance of rights and obligations. This balance, however, might not work very well, owing to the Victorian reliance on the free market. In the context of discussing the contrast between the Romantic belief in authorship vs Anglo-American skepticism towards moral rights, Cornish et. al. revealed the Victorian tradition’s reluctance “to subject the bargaining’s of the marketplace to higher dictates of good faith, propriety and fairness.”83 This Victorian reliance on the free market, when taken to its extreme, might develop into the so-called public good market failure that later economic and structural analysis sought to be balanced with copyright exceptions. Although the Victorian belief in the sanctity of contract—therefore free trade—“has today been to some degree modified by broader notions of fiduciary responsibility, duties of care and unconscionability,”84 the Victorian reliance on the free market still presents a strong resistance to establishing the antitrust control of private ordering of copyright trade for public interest consideration both in regional and international trading frameworks. Copyright as the “competition” law remedying “market failure” for the balance of rights and obligations encounters tremendous challenges at both regional level, as seen in the diversified regional anti-circumvention implementation, and at international level, as seen in TRIPS and Internet Treaties negotiations. At the regional level, the anti-circumvention controversies in the Diplomatic Conference negotiation indicated the tension between rights and obligations, as well as the tension

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between idea and expression. Going beyond the contrast between the USA and the European Union (EU) at the turn of the millennium, the anti-circumvention issue remains an imminent one, as seen in recent free trade fragmentation’s take on the issue from the CP/TPP, ACTA, and RCEP negotiations. Under CPTPP, the anticircumvention mechanism clearly adopts the USA’s DMCA model. The 1201 rulemaking procedure mechanism under the DMCA is transposed under CPTPP to “a legislative, regulatory, or administrative process” of any member who intends to provide “limitations and exceptions” to the anti-circumvention ban in the case of “an actual or likely adverse impact of” protection measures on non-infringing uses.85 In fact, CPTPP goes beyond the DMCA model and shows a clear focus of copyright access control, as it defines “effective technological measure” as any technology, device, or component that “controls access to” copyrighted material or protects copyright.86 Within the CPTPP framework, intellectual property protection includes matters affecting the “availability, acquisition, scope, maintenance and enforcement” of, as well as the “use” of, intellectual property rights, which covers the “prohibition on the circumvention of effective technological measures” therein.87 Under the CPTPP, the anti-circumvention ban violation “is independent of any infringement that might occur under the Party’s Law on copyright and related rights,”88 which indicates that to a certain extent it requires each member to treat this as a new violation. Not only CPTPP but other regional trade negotiation frameworks, including the ACTA or RCEP negotiations, are influenced by the evolving anti-circumvention mechanism. While the ACTA includes a short version of the TPP Agreement,89 the RCEP negotiations show a clear complication. Under the RCEP framework, while ASEAN, New Zealand, China, India, Australia, and Japan proposed a general requirement of providing adequate legal protection and remedies against “the circumvention of effective technological measures that are used by” right holders or authors in connection with the copyrights and restrict unauthorized or illegal acts, South Korea proposed a rather comprehensive provision on the protection of technological measures.90 In the final RCEP text upon conclusion, the anti-circumvention mechanism was consolidated to a rather simple extent as three provisions, including TPMs protection, RMIs protection, and TPMs/RMIs limitations and exceptions, without Japanese-proposed general requirements or Korean-suggested comprehensive provision.91 In a related issue concerning broadcasting rights, while South Korea and Australia proposed a 50-year or more protection term and legal protection and remedies against willful reception or distribution of decoded encrypted program-carrying satellite signals or dealing of relevant decoding devices or systems, ASEAN, China, New Zealand, and India opposed this.92 The final conclusion of the RCEP offers only broadcasting organizations’ exclusive rights against “re-broadcasting,” “fixation,” and “reproduction of fixations” of their broadcasts.93 As one of the RCEP key players, China in its recent copyright amendment of the Copyright Law showed an attempt to balance rights and obligations in implementing the anti-circumvention obligation,94 and TPMs and RMIs protection mechanisms were incorporated into the Copyright Law upon amendment.95 Under this amendment, right holders may adopt technological protection measures to protect “copyright and related rights,” and technological protection measures are defined as any effective technology, device, or component

166 The Origin of Copyright that prevents or restricts “copying, viewing, appreciating, running, adapting or network communicating” copyrighted works.96 Anti-circumvention exceptions are made for education, disability, public enforcement, security tests, and cryptology or reverse engineering research.97 RCEP negotiation clearly shows a great divergence of perspectives as to copyright’s technological protection measures in this ongoing free trade fragmentation. The divergence of views as to copyright’s technological protection measures is deeply rooted in RCEP members’ diverse perspectives as to intellectual property protection’s balance of rights and obligations. During the objectives negotiations, members agreed to take into account “the different levels of economic development and capacity and differences in national legal systems,” and “the need to maintain an appropriate balance between the rights of intellectual property rights holders and the legitimate interests of users and the public interest.” However, there is no agreement on taking into account “the importance of facilitating the availability of information, knowledge, content, culture and the arts,” as this proposal from Australia, New Zealand, and ASEAN was opposed by South Korea.98 As to the objectives of the intellectual property chapter, for example, while Japan proposes the simple reinstatement of the objectives and principles provided for in Articles 7 and 8 of the TRIPS Agreement, this is opposed by ASEAN, Australia, South Korea, and New Zealand.99 It is important to note that the CPTPP final text takes TRIPS’ Articles 7 and 8 as its objectives and principles.100 As for the objectives, while South Korea proposes “to provide certainty for rights holders and users” over intellectual property rights protection and enforcement, India opposes it; and while ASEAN and Australia propose “to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare” as one of the objectives, South Korea opposes this.101 Upon the conclusion of the RCEP, members agreed upon “the need to promote innovation and creativity” and “the importance of facilitating the diffusion of information, knowledge, content, culture, and the arts.”102 RCEP members also agreed that intellectual property protection and enforcement should “contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”103 During copyright digital reform, while politics-copyright intra-action in Hong Kong, geopolitics-copyright dynamics in Taiwan, and the dominance of the public-oriented trade interest in mainland China show digital copyright reform diversity, RECP development shows regional onto-epistemological complexity. On the one hand, the diverse membership composition among regional free trade negotiation inevitably presents a structural factor leading to the fragmentation of copyright anticircumvention in free trade. The memberships of the ACTA, CPTPP, and RCEP are quite complex and diverse. Among the RCEP members, while Japan, Australia, and New Zealand are members of both ACTA and CPTPP, South Korea is an ACTA negotiating member, yet not a member of—although invited and attending—the CPTPP negotiations. Among the RCEP members, neither China

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nor India is a participant in ACTA or CPTPP negotiations. RCEP’s diverse membership naturally brings in contrasting perspectives of intellectual property policy. The diverse membership composition offers clear explanation to the complexity. On the other hand, while the IP Chapter emphasizes “the need to foster competition,”104 the RCEP Agreement has a unique Competition Chapter that is not often seen among regional and international trading frameworks. While recognizing the existing “significant differences” in competition policy development and capacity as well as members’ “sovereign rights” of having their own policy, the RCEP Agreement also expects member to “implement this Chapter in a manner consistent with the objectives of this [Competition] Chapter.”105 The “objectives,” according to the RCEP, are to “promote competition in markets, and enhance economic efficiency and consumer welfare” through “adoption and maintenance” of laws and regulations and through “regional cooperation,” to facilitate trade and investment.106 This unique competition policy culture reflects the special ontological interdependence of the RCEP framework. During the development of the anti-circumvention mechanism in local and regional frameworks, the development of the regional free trade fragmentation, from CPTPP to ACTA to RCEP, prevents anti-circumvention from attaining a balance between idea and expression or between rights and obligations. Although the CPTPP and ACTA tried to establish a TRIPS-plus framework, what instead developed is TRIPS fragmentation. As a TRIPS-different framework, the Chineseinfluenced yet not Chinese-led diverse membership of the RCEP sits in a unique position between TRIPS and the ACTA or CPTPP in shaping the global intellectual property policy in trade. The RCEP framework is not a TRIPS-plus, rather a TRIPS-alternative framework. 6.3.3 TRIPS, Internet Treaties, and Copyright Ontological Balance At the international level, copyright as the “competition” law remedying “market failure” for a balance of rights and obligations sees difficulties too in TRIPS and Internet Treaties negotiations. Long after the Statute of Anne’s introduction of author and reader interests’ balanced with stationers’ private right monopoly in the book trade, copyright has remained a private, domestic issue for a long time. Indeed, before the introduction of intellectual property rights into the international trading framework through the TRIPS Agreement, intellectual property in general was still the domain of specialists and intellectual property rights producers.107 TRIPS’ incorporation of intellectual property into the international trading framework “elicited great concern over its pervasive role in people’s lives and in society in general.”108 This incorporation reveals serious international contentions and divisions regarding protection between the developed and developing countries. The intellectual property rights divide between the North and the South is evident in TRIPS negotiations, in particular during the process of the formulation of the Preamble and the Objectives and Principles provisions of the TRIPS Agreement. Most importantly, this North-South divide mirrors the copyright confrontation between right holders’ monopoly

168 The Origin of Copyright interests and popular concerns about public access in trade throughout the post-Statute of Anne development. TRIPS negotiations started in Uruguay in 1986, a critical moment of deadlocked negotiation of WIPO revision of the Paris Convention, owing to the tension between developed countries’ emphasis on intellectual property protection vs less-developed countries’ concerns about access to technology.109 As one of the principle “new area” negotiations in the Uruguay Round, the incorporation of intellectual property rights into international trade was fairly controversial, and opinions were divided between developing and developed countries.110 While the draft legal text from developed countries including the EU, the USA, Japan, Switzerland, and Australia—the “A” text—emphasizes the domestic enforcement and the applicability of GATT dispute settlement mechanism to TRIPS disputes, a dozen developing countries proposed another legal text—the “B” text—with a focus on maintaining flexibility to implement economic and social development objectives.111 At the very beginning of the negotiations, developed countries and a few developing countries were expecting only a Tokyo Round type “code” to be incorporated into the GATT framework. The 1988 US proposal, for example, suggests as one of the objectives to “[e]ncourage non-signatory governments to adopt and enforce the agreed standards for protection of intellectual property and join the [GATT] agreement.”112 India, however, submitted a detailed paper indicating a developing country perspective in sharp contrast with US proposal.113 India suggested that only the restrictive and anti-competitive practices of the intellectual property right owners “can be considered to be traderelated because they alone distort or impede international trade.”114 India therefore suggested that the negotiation “should be governed by the concerns and public policy objectives underlying the national systems for the protection of intellectual property, including developmental and technological objectives.”115 When it became clear that the significance of TRIPS negotiations would certainly go beyond counterfeiting and piracy matters, the developing countries insisted on including the issue of anticompetitive practices into the TRIPS framework.116 For example, together with clear, objective, and detailed measures, Peru’s communication expressed the common concerns of developing countries and suggested that all countries should be able to adjust an intellectual property protection system to facilitate national development and technology transfer.117 Developed countries with established rules for the control of intellectual property rights-related anticompetitive practices, however, had no interest in incorporating the competition framework in TRIPS. Eventually, owing to the threat of sanctions and implicit dismantling of GATT, as well as concessions offered by developed countries in other areas like agriculture and textiles, “the resistance of developing countries was overcome.”118 The final result of the Uruguay Round mirrored the “A” text and norms accepted by developed countries, and developing countries’ concerns “were reflected in large part in two provisions—Articles 7 and 8 [of the TRIPS Agreement].”119 Developing countries’ concerns about the control of IPRs’ abuses and the “pernicious effects” of some contractual practices—that were first reflected in the 1990 Anell Draft120— eventually became Articles 8.2 and 40 of the TRIPS Agreement.121 TRIPS’ intellectual property philosophy of the balance of rights and obligations was thus included.

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Nonetheless, there have long been heated debates as to “what constitutes an adequate balance between proprietary intellectual property rights and the public interest” without much consensus reached.122 While emphasis on intellectual property’s proprietary nature “neglects the conditions under which copyrighted materials are used,” “emphasis on public policy interests ignores the conditions necessary for their creation.”123 In fact, the tension between rights and obligations is also reflected in the WIPO Diplomatic Conference that led to the birth of the Internet Treaties. When the WIPO started the First Session of Committee of Experts in 1991, the issue of technological protection measures was not on the discussion agenda.124 It was raised as one of the “New Items” under issue of “Enforcement of Rights” in the Third Session of the Committee of Experts in 1993.125 Under the understanding that copy-protection circumvention and broadcast decryption undermine “the normal exploitation of the works” and could cause serious prejudice to the interests of the right holders, these activities were considered as “violations of the protected rights and should be sanctioned in a way similar to that of other kinds of infringements.”126 Within this context, infringement was defined as “a violation of any right protected under the protocol, whether the right is a moral right, an exclusive right of authorization or a right to remuneration.”127 As a result of the general debate of the session, it was concluded that “future discussions on enforcement should take place on the basis of the GATT/TRIPS text.”128 In the Fourth Session of the Committee of Experts, although all delegations and observers expressed support in principle, views were diverse as to the nature of the provisions and linkages with existing civil and criminal measures, and concerns as to impediment of free flow of ideas and impacts on fair use were also raised.129 Most importantly, issues remained as to “who should be the beneficiaries of the rights to be recognized, what should be the link with existing enforcement mechanisms and other laws, as well as on the nature of the link with copyright legislation.”130 Proposals in treaty language were finally submitted by Argentina, Brazil, and the USA at the Sixth Session,131 and by the EU at the Seventh Session.132 While the need for an anti-circumvention protection was agreed upon, many issues as to the criteria of knowledge, definition of circumvention measures and unlawful acts, as well as the interface with copyright and other legislation remained unclear.133 Eventually, while the Article 13(1) of the Basic Proposal I 1996 mirrored the US and EU approach, Article 13(2) took clear inspiration from the EC proposal. The purpose of these Sessions was clearly to improve right enforcement rather than to create new rights. The discussion during the Geneva Diplomatic Conference indicated the complexity of the issue and an unfortunate divide between private rights and public interests. On behalf of the African Group, the Ghanaian delegation indicated a wish “to register most strongly their protest against the inclusion of those Articles in their present form” and suggested deletion of the provisions, as they were vague, confusing, and “because developing countries would be unable to implement such provisions.”134 The South African delegation concurred and “strongly believed that those Articles addressed a real problem,” yet argued that “there was a danger that no provision could be adopted relating to

170 The Origin of Copyright technological measures.”135 The Nigerian and Senegalese delegations expressed support to the Ghanaian and South African delegations, respectively.136 The Chinese delegation also suggested deleting both provisions on “Obligations concerning Technological Measures.”137 Other delegations also raised various concerns. The South Korean delegation, for example, expressed “concern on possible abuses of technological measures by authors or other right holders.”138 The delegation argued that “Contracting Parties should be given discretional power to impose conditions on the technological measures which were aimed at protecting the materials or works which were not supposed to be protected.”139 The Canadian delegation expressed concern that the provisions might interfere with “access to works in the public domain or restrict access under fair use or fair dealing provisions or of specific exceptions.”140 Similarly, the Singaporean delegation was concerned that the provisions “could outlaw copying for personal, scientific and educational uses.”141 The Australian delegation also expressed concerns that the provisions “might unwittingly restrict access to material in circumstances where it was not subject to copyright,” and suggested to limit it to “clear cases of intended use for copyright breaches.”142 The USA, however, “strongly supported the inclusion of provisions concerning technological measures.”143 For the USA, the safeguards the mechanism offered to right holders “were critical if the Internet were to develop into a fully mature and truly global marketplace for information and entertainment products for consumers in countries around the world.”144 Similarly, the EC Delegation, although acknowledging the need “to achieve the right balance of rights and interests,” considered the mechanism “particularly important in order to ensure the effective protection of works and other subject matter in the new digital environment.”145 In a similar vein, the British delegation “observed that the provisions on technological measures were an essential underpinning of copyright and neighboring rights in the digital age.”146 Other delegations, including from Australia, Norway, and Hungary, also indicated their approval of the anti-circumvention provisions.147 Owing to insufficient experience in circumvention protection in copyright law, controversies about the definition and characteristic feature of circumvention protection, and the potential implementation difficulty and the possible abuse of the technological measures, a less detailed and flexible proposal was proposed by some African countries.148 This proposal in fact “represented a compromise which representatives of the private sector, mainly from the USA, have arrived at.”149 This proposal was then accepted, with a few minor changes to the text. The unfortunate North-South divide during WTO negotiations is indeed TRIPS’ birth defect, which is also clearly reflected in Internet Treaties’ lost balance.150 The WIPO Internet Treaties, although forming no part of the WTO framework, were closely related to it as they “serve to update the TRIPS obligations, creating a modern and comprehensive framework of rights for the digital age.”151 When regional free trade’s fragmentation works in tandem with TRIPS’ birth defect and the absence of further anti-abuse control, diverse anti-circumvention implementation gives rise to a private ordering issue of fundamental significance in international law. Implementing anti-circumvention to establish right holders’ access control turns copyright into a

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“negative right in rem,” and TRIPS strong enforcement enables the holder of the negative right “to prevent certain acts” to reach beyond traders to users and the general public. When enforcement goes beyond traders to the general public, TRIPS goes beyond international law’s traditional limitations. Traditionally, the coverage of the WTO’s existing and potential future treaties is “limited to trade relations” among WTO members,152 without reaching any private individuals and the general public. As a well-established part of GATT/WTO jurisprudence, WTO agreements have no direct effect, thus neither adding nor diminishing the private rights of members’ nationals.153 In fact, individuals are not subjects of international law and consequently derive no rights nor bear any obligations under international law.154 When copyright as a negative right in rem gains power against users and the general public in free trade, but anti-abuse control is not available, copyright in free trade certainly trespasses traditional international law’s boundaries in transforming the WTO into a regime of private ordering in trade. International law is trespassed and undermined when private right holders gain power in the international framework, and free trade becomes fragmented.

6.4 Conclusion: Trade Fragmentation’s Copyright Onto-Epistemology Since copyright went modern at the birth of the Statute of Anne 1710 to regulate book trade order, copyright’s Gutenbergian ontological dynamics between authorship, entrepreneurship, and readership have been evolving through trade. Copyright’s later going global at the Berne Convention 1886 and then TRIPS’ incorporation into the international trading regime in 1995 indicate that copyright has always been trade-oriented and aimed at a balance of rights and obligations. At about the same time as the birth of the TRIPS, the Internet Treaties inaugurated copyright’s shift to the digital era in response to technological advances. In addition to creating new online rights, member states are under an anti-circumvention obligation to ensure adequate legal protection and remedies against the circumvention of technological measures protecting copyrights. The implementation of the anti-circumvention obligation varies, ranging from the DMCA’s emphasis on access control to the EU’s InfoSoc Directive’s focus on use control. The take on the issue in regional trade negotiations from CPTPP, ACTA, to RCEP brought the complexity of copyright onto-epistemology further, alongside the increasing fragmentation of free trade negotiation. This Chapter’s examination of the evolution of the free trade frameworks from the regional CPTPP, ACTA, and RCEP to the international TRIPS and the WIPO Diplomatic Conference, reveals that the balance of rights and obligations is ontologically imperative yet hardly maintained. The unfortunate North-South divide in TRIPS negotiations and the tension between rights and obligations, or between idea and expression, continues in recent regional trade talks and leads the anti-circumvention mechanism to nowhere during the ontological context of evolving free trade fragmentation as the ontological context of free trade evolution. The contrasting anti-circumvention implementations in particular or the lost balance between rights and obligations in general during the process of free trade evolution,

172 The Origin of Copyright either in regional frameworks such as the CPTPP, ACTA, or RECP, or international frameworks like TRIPS or Internet Treaties, raises an issue of imbalance and can only be better dealt with through competition control. Indeed, competition as one of the “Singapore issues” was kicked off at the 1996 Singapore Ministerial Conference upon the establishment of the new working group on competition policy, and the need to recognize competition policy’s contribution to international trade and development was acknowledged in the 2001 Doha Ministerial Declaration.155 The issue of the “interaction between trade and competition policy,” unfortunately, was dropped from the Doha agenda in the 1 August 2004 decision, owing to no consensus. However, the RCEP shows a minimum interest of coordinating competition policy development, which offers certain hope of maintaining the ontological interdependence for copyright digital reform in the context of free trade fragmentation, regionally or internationally. While dropping the antitrust control issue renders antiabuse negotiation unfinished in TRIPS, free trade fragmentation from CPTPP, to ACTA, to RCEP prevents anti-circumvention from attaining a balance between idea and expression,or between rights and obligations. Although the CPTPP and ACTA tried to establish a TRIPS-plus framework, what instead developed is TRIPS fragmentation. Free trade fragmentation, either regionally or internationally, complicates copyright reform locally or regionally, which shows copyright ontological complexity in the copyright digital age. Similar to the way religious struggle and censorship muddled the birth of modern copyright in the Gutenbergian era, local political distrust, geopolitical struggle, and the international ideological divide in the contemporary era have brought copyright ontological complexity to the deepest layer possible. While Hong Kong’s local politics complicated copyright digital reform, geopolitics superseded Taiwan’s trading interests in a hurry, aligning with the CPTPP before it even became a member, and both indicate the complexity of the copyright onto-epistemology in trade. Mainland China’s recent implementation of a copyright amendment of Internet Treaties’ obligations with a private-public balanced perspective and the successful conclusion of the RCEP enrich the trade-copyright intra-action. Trade fragmentation will inevitably facilitate diversifying copyright digital reform, which will lead to the further complication of the ontological balance between authorship, readership, and entrepreneurship. Upon free trade fragmentation, entrepreneurship concerns might overtake concerns of authorship and readership. Overemphasis of the trading framework and the proliferation of its significance in copyright development might inevitably lead to the marginalization of users’ interests. There is a danger of the fading out of user’s or the public interest’s checks and balances in the copyright triangular onto-epistemological balance, in line with the proliferation of the regional trade talks. This is a worrying trend that we might not want to see in the digital age of copyright after some 300 years of development.

Notes 1 The statement of course needs to be treated with caution, as neither the Statute of Anne is the real first one, nor does it represents all jurisdictions. See Lionel Bently,

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“Introduction to Part I: the history of copyright,” in L. Bently, U. Suthersanen and P. Torremans, eds., Global Copyright: Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace (Cheltenham: Edward Elgar, 2010), 7–13. See discussion supra 1.1.1 for more details. Lyman R. Patterson, Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968), 14. Lyman R. Patterson and Craig Joyce, “Monopolizing the Law: the Scope of Copyright Protection for Law reports and Statutory Compilations,” 36(4) UCLA Law Review (1989), 792–798. Patterson and Joyce, “Monopolizing the Law,” 798. OGCIO, Hong Kong, “Fact Sheet: Hong Kong – An ICT Hub,” available at Hong Kong OGCIO site at: www.ogcio.gov.hk/en/about_us/facts/doc/Fact_SheetHK_as_ICT_Hub-EN.pdf (accessed 22 December 2020). CEDB, Hong Kong, “2008 Digital 21 Strategy: continuing to build on our strengths through technology across the community” December 2007. Available at Hong Kong OGCIO official site at: www.ogcio.gov.hk/en/news/publications/doc/2008D21S-booklet.pdf (accessed 22 December 2020). Wenwei Guan, “When Copyrights Meet Human Rights: ‘Cyberspace Article 23’ and Hong Kong’s Copyright Protection in the Digital Era,”42(3) Hong Kong Law Journal (2012), 785, 787–788. The Commerce and Economic Development Bureau, Hong Kong, “Copyright Protection in the Digital Environment” (2006). Available at: www.info.gov.hk/archive/ consult/2007/digital_copyright_e.pdf (accessed 22 December 2020). Guan, “When Copyrights Meet Human Rights,” 785–808. Wenwei Guan, “Fair Dealing Doctrine Caught between Parody & UGC Exceptions: Hong Kong’s 2014 Copyright Amendment and Beyond,” 45(3) Hong Kong Law Journal (2015), 719–742. CEDB, Hong Kong, “The Government’s response to Members’ Proposed Committee Stage Amendments and Deputations’ Submissions,” LC Paper No. CB(4)61/15–16 (01), October 2015. Available at LegCo site at: www.legco.gov.hk/yr13-14/english/ bc/bc106/papers/bc1061019cb4-61-1-e.pdf (accessed 22 December 2020). LegCo, Hong Kong, “LegCo Brief: Copyright (Amendment) Bill 2011,” CITB07/ 09/17, paras. 4–14. Available at: www.legco.gov.hk/yr10-11/english/bills/brief/ b35_brf.pdf (accessed 22 December 2020). CEDB, Hong Kong, “Treatment of Parody under the Copyright Regime Consultation Paper.” Available at: www.gov.hk/en/residents/government/publication/consultation/docs/2013/Parody.pdf (accessed 22 December 2020). Guan, “Fair Dealing Doctrine Caught between Parody & UGC Exceptions,” 719–720. CEDB, Hong Kong, “Legislative Council Brief: Copyright (Amendment) Bill 2014,” CITB 07/09/17, 11 June 2014, para. 19. Available at: www.legco.gov.hk/yr13-14/ english/bills/brief/b201406131_brf.pdf (accessed 22 December 2020). CEDB, Hong Kong, “The Government’s response to Members’ Proposed Committee Stage Amendments and Deputations’ Submissions,” October 2015, paras. 1–9. See also, John Medeiros, “Real Purpose of the Copyright (Amendment) Bill Being Overlooked,” China Daily Asia (Friday 18 December 2015), available at: www.chinadailyasia.com/ opinion/2015-12/18/content_15360395.html (accessed 22 December 2020). Stuart Lau, “Five Reasons the Hong Kong Copyright Bill Failed: the political drama explained as Legislative Council debate ended over the controversial legislation,” South China Morning Post (4 March 2016), available at: www.scmp.com/news/hong-kong/ politics/article/1920569/five-reasons-hong-kong-copyright-bill-failed (accessed 22 December 2020). State General Administration of Publication, PRC, “Decision on Redress Phenomena of Arbitral Book Copying,” ChuJiZi[1953]270, 1953.

174 The Origin of Copyright 20 Ministry of Culture, PRC, “Provisional Rules on Protection of the Copyrights of Published Works (draft),” 1957. 21 Ministry of Culture, PRC, “Circular on Proper Implementation of Remuneration System and Appropriate Grasp of Remuneration Standard,” WenChuQiZi[1961]1216, August 1961. 22 Art. 6(5), “China-United States: Agreement on Trade Relations” (signed on 7 July 1979), 18, I.L.M. (1979), 1048. 23 Ministry of Broadcast and Television, PRC, “Provisional Rules on Administration of Audio and Video Recordings,” GuoFa[1982]154, December 1982. 24 Ministry of Culture, PRC, “Trial Regulations on the Copyright Protection of Books and Periodicals,” WenChuZi[1984]849, June 1984. 25 Art. 94, PRC General Principles of Civil Law 1986. 26 National Copyright Administration (NCAC), PRC, “A Brief Explanation on the Amendment Draft of the PRC Copyright Law,” 10–11. Available at: www.ncac.gov.cn/contents/ 483/17745.html (accessed 22 December 2020, thereafter, 1st Brief. See also, Wu Handong, “From Responsive to Proactive Change: an examination on the third amendment of the PRC Copyright Law,” Studies in Law and Business, Issue 4 of 2012, 3–7. 27 NCAC, PRC, ibid., p. 8. 28 NCAC, PRC, “PRC Copyright Law Amendment (second draft)” and “A Brief Explanation of the Changes and Improvements of the Second Amendment Draft of the PRC Copyright Law” (thereafter, the 2nd Brief), released on 6 July 2012. Available at: /www. gov.cn/gzdt/2012-07/10/content_2180033.htm (accessed 22 December 2020). 29 NCAC, PRC, the 2nd Brief, 2–9. 30 State Council Legal Affairs Office, PRC, Copyright Law Amendment Deliberating Draft and Explanation Brief. Available at: www.gov.cn/xinwen/2014-06/10/ content_2697701.htm (accessed 22 December 2020). 31 Bill was published on 30 April 2020 and passed on 11 November 2020, to be effective in 1 June 2021. 32 Art. 12, Beijing Treaty on Audiovisual Performances. 33 Arts. 11–12, WCT; Arts. 18–19, WPPT. 34 See discussion infra 6.2.3 for more details. 35 Arts 8.2 and 8.3 upon the third amendment. 36 Art. 12.2 as to copyright registration, and Art. 14.1 as to common ownership, upon third amendment. 37 NCAC, PRC, the 1st Brief, 19; Wu, “From Responsive to Proactive Change,” 6. The software reverse engineering exception against circumvention liability is added as Art. 50.1(5) upon third amendment. 38 Jerry G. Fong, “From Taiwan Copyright Regime’s Evolution to the Future Opportunity across the Strait,” Journal of Legal and Economic Studies [Honfan Pinglun (in Chinese) by Joint Publishing] (2012), 33–36. 39 Fong, “From Taiwan Copyright Regime’s Evolution to the Future Opportunity across the Strait,” 36–38. 40 Ibid., 38–43. 41 During the post-2004 period, the Taiwan Copyright Law was amended in 2006, 2007, 2009, 2010, 2014 and 2016. 42 Fong, “From Taiwan Copyright Regime’s Evolution to the Future Opportunity across the Strait,” 43–48. 43 The Trans-Pacific Partnership (TPP) framework, was a regional trade agreement negotiated between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and the USA to cover measures to lower both tariff and non-tariff barriers to trade and investor-state dispute settlement mechanism. TPP agreement includes an extensive intellectual property chapter, the Chapter 18. After the USA withdrew from the TPP in January 2017, the remaining parties continued the

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negotiations as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and concluded on 8 March 2018 in Chile. The Taiwan Government empathizes that, the draft amendment to the Copyright Act “aims to not only further participation in regional trade by accessing TPP but also to the creation of a more robust IP regime by reinforcing IPRs protection.” See, Taiwan Intellectual Property Office (TIPO), “Amendment to Copyright Act for TPP is submitted to Legislative Yuan after being passed by Executive Yuan,” 14 October 2016. Available at TIPO official site: www.tipo.gov.tw/ct.asp? xItem=603932&ctNode=6687&mp=2 (accessed 22 December 2020). Lu Yi-hsuan and Lin Liang-sheng, “Taiwan Pushing to Join the CPTPP,” Taipei Times (Mon, Nov 16, 2020 page 1). Available online at: https://taipeitimes.com/ News/front/archives/2020/11/16/2003746988 (accessed 22 December 2020). Anti-Counterfeiting Trade Agreement (ACTA) is a multilateral treaty framework for the purpose of establishing international enforcement standard for intellectual property rights in trade, with focus targeting counterfeit goods, generic medicines and copyright infringement on the Internet. The agreement signed by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea, and the US in 2011 and joined by Mexico and EU in 2012. With only Japan ratified it, the Agreement is not inforce so far. Peter K. Yu, “Six Secret (and Now Open) Fears of ACTA,” 64 SMU Law Review (2011), 975, 1094. The Regional Comprehensive Economic Partnership (RCEP) is a regional free trade framework among 10 countries of the Association of Southeast Asian Nations (ASEAN) and Australia, China, India, Japan, South Korea and New Zealand which was launched in 2012 at the ASEAN Summit. The RCEP, with India’s withdrawal from the negotiation, concluded and signed on 15 November 2020. The RCEP leaked IP Chapter, dated 15 October 2015 (thereafter, RCEP IP Chapter 2015), was leaked to public by the Knowledge Ecology International. The leaked text is available at: www.keionline.org/23060 (accessed 22 December 2020). It is worth mentioning here that, among the RCEP members, while Japan, Australia and New Zealand are members of ACTA/TPP, and South Korea is ACTA yet not TPP member (invited and attended), neither China nor India who dropped at the later stage before the conclusion, is member of ACTA/TPP. Art. 2.3, the leaked text of RCEP IP Chapter. Ibid. Art. 2.6, the leaked text of RCEP IP Chapter. Lyman R. Patterson, Copyright in Historical Perspective, 3–4. See also, Lyman R. Patterson and S.W. Lindberg, The Nature of Copyright: A Law of User’s Rights (Athens, GA: University of Georgia Press, 1991), 125–126. Patterson, Copyright in Historical Perspective, 4–5. Ibid. Patterson, Copyright in Historical Perspective, 223. Craig P. Joyce & Lymna R. Patterson, “Copyright in 1791: An Essay Concerning the Founders’ View of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the US Constitution,” 52 Emory Law Journal (2004), 909, 916. Patterson, Copyright in Historical Perspective, 223. Patterson and Lindberg, The Nature of Copyright, 126. According to Patterson and Lindberg, Apart from the limited term for copyright that creates the public domain, three sections of that first English act suggest both a repudiation of censorship and an affirmative concern for the right of access to books: section 4 provided for price control of books, section 5 provided that copyrighted books were to be supplied to nine different libraries, and section 7 provided that the act was not to prevent the importation of, or apply to, books in foreign languages printed beyond the seas, which had previously required the licenser’s imprimatur as part of the scheme of censorship.

176 The Origin of Copyright 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74

75 76 77 78 79 80 81 82

83 84 85 86 87 88 89 90 91 92

Patterson, Copyright in Historical Perspective, 7. Gyles v. Wilcox, [1740] 3 Atk 143; 26 ER 489. Art. I, section 8, clause 8, US Constitution. §107 17 U.S.C., Copyright Act of 1976. Art. 10, paragraph (1), Berne Convention. Art. 10, paragraph (2), Berne Convention. Art. 10bis, paragraph (1), Berne Convention. Art. 10bis, paragraph (2), Berne Convention. WIPO, Guide to the Berne Convention, 78–79. Art. 11bis, paragraph (2), Berne Convention. WIPO, Guide to the Berne Convention, 66. Art. 13, paragraph (1), Berne Convention. WIPO, Guide to the Berne Convention, 78–79. WIPO, Guide to the Berne Convention, 70. Art. 9.1, TRIPS Agreement states, “[WTO] Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights [in relation to moral rights] conferred under Article 6bis of that Convention or of the rights derived therefrom.” Niva Eolkin-Koren. “Copyright policy and the limits of freedom of contract,” 12(1) Berkeley Technology Law Journal (1997), 93, 98. Ibid., 99. Wendy J Gordon, “Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors,” 82 Columbia Law Review (1982), 1600, 1614. Ibid., 1614. Lucie M.C.R. Guibault. Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright (London: Kluwer Law International, 2002), 53. Ibid., 83. Ibid., 100. Wendy J Gordon, “Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors”; William M Landes & Richard A Posnter, “An Economic Analysis of Copyright Law,” 18 Journal of Legal Studies (1989), 325, 325–363; Robert A. Kreiss, “Accessibility and Commercialization in Copyright Theory,” 43 UCLA Law Review (1995), 1, 1–76; Niva Eolkin-Koren. “Copyright policy and the limits of freedom of contract”; Julie E. Cohen, “Lochner in Cyberspace: the New Economic Orthodoxy of ‘Rights Management’,” 97 Michigan Law Review (1998), 462, 462–562; Lucie M.C.R. Guibault. Copyright Limitations and Contracts; Jacques de Werra, “Moving Beyond the Conflict Between Freedom of Contract and Copyright Policies: In Search of a New Global Policy for On-Line Information Licensing Transactions,” 25(4) Columbia Journal of Law & the Arts (2003), 239, 239–375; Alexandra Sims, “Copyright and Contract,” 22 New Zealand University Law Review (2007), 469, 469–495. Cornish et. al., Intellectual Property: Patents, Copyright, Trademarks and Allied Rights, 504. Ibid. Art. 18.68.4(a), CPTPP Final Text. Art. 18.68.5, CPTPP Final Text. Emphasis added. Footnote 4 to Art. 18.8.1, CPTPP Final Text. Art. 18.68. 3, CPTPP Final Text. Emphasis added. Arts 27.5 and 27.6, ACTA Agreement. Art. 2.3, the leaked text of RCEP IP Chapter. Arts 11.15, 11.16, and 11.17 respectively, RCEP Agreement. Art. 2.6, the leaked text of RCEP IP Chapter.

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111 112

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Art. 11.12.1, RCEP Agreement. See discussion supra section 6.2.2 for more details. Arts. 49, 50, and 51, PRC Copyright Law, as amended in November 2020. Art. 49, PRC Copyright Law (amended 2020). Art. 50, PRC Copyright Law (amended 2020). Art. 1.1, the leaked text of RCEP IP Chapter. Arts 1.1 and 1.2, the leaked text of RCEP IP Chapter. Arts 18.2 and 18.3, TPP Agreement. Art. 1.1, the leaked text of RCEP IP Chapter. Arts 11.1.1(b) and (c), RCEP Agreement. Art. 11.1.2, RCEP Agreement. Art. 11.4.3, RCEP Agreement. Art. 13.2, RCEP Agreement. Art. 13.1, RCEP Agreement. Rubens Ricupero & Ricardo Melendez Ortiz, “Preface,” in Resource Book on TRIPS and Development (UNCTAD & ICTSD eds., 2005), vii. Ibid. Peter K. Yu, “The Objectives and Principles of the TRIPS Agreement,” 46(4) Houston Law Review (2009), 982. See also, UNCTAD-ICTSD, Resource Book on TRIPS and Development, 3. UNCTAD-ICTSD, Resource Book on TRIPS and Development, 3–4. The other “new area” negotiation in the Uruguay Round concerned trade in services which resulted in the General Agreement on Trade in Services (GATS). See also, Yu, “The Objectives and Principles of the TRIPS Agreement,” 983–984. Daniel J. Gervais, “Intellectual Property, Trade & Development: The State of Play,” 74 Fordham Law Review (2005), 505, 507–508. Suggestion by the United States for Achieving the Negotiating Objective (Revision), United States Proposal for Negotiations on Trade-Related Aspects of Intellectual Property Rights, Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods (MTN.GNG/NG11/W/14/ Rev.1, 17 October 1988), p. 3. Indian submission, “Standards and Principles concerning the Availability, Scope and Use of Trade-Related Intellectual Property Rights” (MTN.GNG/NG11/W/37, 10 July 1989), Communication from India to Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods. Ibid., p. 2. Ibid. See Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis, 2nd ed. (London: Sweet & Maxwell, 2003), 280; Pedro Roffe and Christoph Spennemann. “Control of Anti-Competitive Practices in Contractual Licences under the TRIPS Agreement,” in Carlos M. Correa and Abdulqawi A. Yusuf, eds, Intellectual Property and International Trade: The TRIPS Agreement (The Netherlands: Kluwer Law International, 2nd ed., 2008), 317–319. Communication from Peru, Guidelines for Negotiation that Strike a Balance between Intellectual Property Rights and Development Objectives (MTN.GNG/NG11/W/ 45, 27 October 1989). UNCTAD-ICTSD, Resource Book on TRIPS and Development, 4. Gervais, “Intellectual Property, Trade & Development: The State of Play,” 508. Chairman’s report to the Group of Negotiation on Goods (MTN.GNG/NG11/W/ 76), 23 July 1990. UNCTAD-ICTSD, Resource Resource Book on TRIPS and Development, 543–546. Thomas Dreier, “Balancing Proprietary and Public Domain Interests: Inside or Outside of Proprietary Rights?” in Rochelle Cooper Dreyfuss, Diane leenheer Zimmerman, and

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125 126 127 128 129 130 131 132 133 134 135 136 137

138 139 140 141 142 143 144 145 146 147 148

149

Harry First, eds, Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society (New York, NY: Oxford University Press, 2001), 295. Ibid., 297. WIPO Committee of Experts on A Possible Protocol to the Berne Convention (First Session, Geneva, 4–8 November 1991), “Questions concerning A Possible Protocol to the Berne Convention: Part I,” BCP/CE/I/2 (18 July 1991). Issues of the Session covered applicability of the Berne Convention, works protected (which include computer programs, databases, expert systems and computer-produced works), and producers of sound recordings. WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Third Session, Geneva, 21–25 June 1993), “Questions concerning A Possible Protocol to the Berne Convention: Part III New Items,” BCP/CE/III/2-III (12 March 1993). Ibid. para. 74. Ibid. para. 67. WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Third Session, Geneva, 21–25 June 1993), “Report adopted by the Committee,” BCP/ CE/III/3 (25 June 1993), para. 114. WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Fourth Session, Geneva, 5–9 December 1994), “Report adopted by the Committee,” BCP/CE/IV/3 (9 December 1994), paras. 89–92. Ibid. BCP/CE/IV/3, para. 96. WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Sixth Session, Geneva, 1–9 February 1996), “Comparative Table of Proposals and Comments Received by the International Bureau,” BCP/CE/VI/12 (10 January 1996), 36–38. BCP/CE/VII/1-INR/CE/VI/1, 3. See, Report on the Fifth Session, BCP/CE/V/9-INR/CE/IV/8, para 350; Report on the Sixth Session, BCP/CE/VI/16-INR/CE/V/14, pp. 48–58/ paras. 194–236. WIPO, Records of the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions (Geneva: WIPO Publication, 1999), Volume II (thereafter, Records of the Diplomatic Conference), 710. Ibid., 710–711. Ibid., 711. Chinese Delegation, “Amendments to Partly Consolidated Text of the Draft Treaty No. 1 (CRNR/DC/55),” CRNR/DC/64 (13 December 1996); and “Amendments to Partly Consolidated Text of the Draft Treaty No. 2 (CRNR/DC/58),” CRNR/ DC/71 (13 December 1996). WIPO, Records of the Diplomatic Conference, 710. Ibid. Ibid., 711. Ibid., 712. Ibid., 714–715. Ibid., 712. Ibid. Ibid., 713. Ibid., 714. Ibid., 714–715. Delegations of Algeria and 29 other African countries, “Amendment to Articles 7, 10, 13 and 14 of Draft Treaty No. 1” (Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, Geneva, 2–20 December 1996), CRNR/DC/56 (2 December 1996), 2. Jorg Reinbothe & Silke von Lewinski, The WIPO Treaties on Copyright: a commentary on the WCT, the WPPT, and the BTAP (Oxford: Oxford University Press, 2015, 2nd edition), 167.

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150 For more discussion on TRIPS’ “birth defect,” see Wenwei Guan, Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014), 5–7. 151 International Bureau of WIPO, “The Advantages of Adherence to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WPPT)” (2002), 10. Available WIPO official site at: www.wipo.int/export/sites/www/copyright/en/ activities/pdf/advantages_wct_wppt.pdf (accessed 22 December 2020). 152 Joost Pauwelyn. “The Jurisdiction of the WTO is Limited to Trade,” 98 ASIL Proceedings of the Annual Meeting (2004), 135. 153 As a WTO Panel pointed out, “[n]either the GATT nor the WTO has so far been interpreted by GATT/WTO institutions as a legal order producing direct effect,” and thus “the GATT/WTO did not create a new legal order the subjects of which comprise both contracting parties or Members and their nationals.” US–Section 301, Trade Act, WTO Panel Report, WT/DS152/R (22 December 1999), para. 7.72. 154 Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (The Hague: Martinus Nijhoff Publishers, 1998), 48. See also, Louis Henkin, IInternational Law: Politics and Values (The Hague: Kluwer Academic Publishers, 1995), 7–8. 155 Para 23, Doha WTO Ministerial Declaration (WT/MIN(01)/DEC/1), 20 November 2001.

Bibliography General Bently, L., U. Suthersanen and P. Torremans eds., Global Copyright: Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace (Cheltenham: Edward Elgar, 2010). Brownlie, Ian. The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (The Hague: Martinus Nijhoff Publishers, 1998). Cohen, Julie E.“Lochner in Cyberspace: the New Economic Orthodoxy of ‘Rights Management’,”97 Michigan Law Review (1998), 462–563. Commerce and Economic Development Bureau, Hong Kong. “Copyright Protection in the Digital Environment” (2006). Commerce and Economic Development Bureau, Hong Kong. Digital 21 Strategy: continuing to build on our strengths through technology across the community (December2007). Commerce and Economic Development Bureau, Hong Kong. “Treatment of Parody under the Copyright Regime Consultation Paper” (11 July2013). Commerce and Economic Development Bureau, Hong Kong. “The Government’s response to Members’ Proposed Committee Stage Amendments and Deputations’ Submissions,” LC Paper No. CB(4)61/15–16(01), October2015. Cornish, W., D. Llewelyn and T. Aplin. Intellectual Property: Patents, Copyright, Trademarks and Allied Rights (London: Sweet & Maxwell, 8th ed., 2013). De Werra, Jacques.“Moving Beyond the Conflict Between Freedom of Contract and Copyright Policies: In Search of a New Global Policy for On-Line Information Licensing Transactions,” 25(4) Columbia Journal of Law & the Arts (2003), 239, 239–375. Dreier, Thomas. “Balancing Proprietary and Public Domain Interests: Inside or Outside of Proprietary Rights?” in Rochelle Cooper Dreyfuss, Diane Leenheer Zimmerman, and Harry First, eds., Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society (New York, NY: Oxford University Press, 2001), 295–316.

180 The Origin of Copyright Elkin-Koren, Niva. “Copyright Policy and the Limits of Freedom of Contract,” 12(1) Berkeley Technology Law Journal (1997), 93–114. Fong, Jerry G.“From Taiwan Copyright Regime’s Evolution to the Future Opportunity across the Strait,”14 Journal of Legal and Economic Studies [Honfan Pinglun (in Chinese) by Joint Publishing] (2012), 30–49. GATT Document. “Guidelines for Negotiation that Strike a Balance between Intellectual Property Rights and Development Objectives,” Communication from Peru, MTN. GNG/NG11/W/45 (27 October1989). GATT Document. “Chairman’s report to the Group of Negotiation on Goods,” MTN. GNG/NG11/W/76 (23 July1990). GATT Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods. “Standards and Principles concerning the Availability, Scope and Use of Trade-Related Intellectual Property Rights,” Communication from India, MTN.GNG/NG11/W/37, (10 July1989). GATT Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods. “Suggestion by the United States for Achieving the Negotiating Objective (Revision),” MTN.GNG/NG11/W/14/Rev.1, United States Proposal for TRIPS Negotiations (17 October1988). Gervais, Daniel J. The TRIPS Agreement: Drafting History and Analysis, 2nd ed. (London: Sweet & Maxwell, 2003). Gervais, Daniel J.“Intellectual Property, Trade & Development: The State of Play,” 74(2) Fordham Law Review (2005), 505–536. Gordon, Wendy J.“Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors,”82 Columbia Law Review (1982), 1600–1657. Guan, Wenwei. “When Copyrights Meet Human Rights: ‘Cyberspace Article 23’ and Hong Kong’s Copyright Protection in the Digital Era,” 42(3) Hong Kong Law Journal (2012), 785–808. Guan, Wenwei. Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014). Guan, Wenwei. “Fair Dealing Doctrine Caught between Parody & UGC Exceptions: Hong Kong’s 2014 Copyright Amendment and Beyond,” 45(3) Hong Kong Law Journal (2015), 719–742. Guibault, Lucie M. C. R. Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright (London: Kluwer Law International, 2002). Henkin, Louis. International Law: Politics and Values (The Hague: Kluwer Academic Publishers, 1995). Joyce, Craig P. and L. Ray Patterson, “Copyright in 1791: An Essay Concerning the Founders’ View of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the US Constitution,”52 Emory Law Journal (2004), 909, 916. Kreiss, Robert A.“Accessibility and Commercialization in Copyright Theory,”43 UCLA Law Review (1995), 1–76. Landes, William M & Richard APosnter. “An Economic Analysis of Copyright Law,” 18 Journal of Legal Studies (1989), 325–363; Lau, Stuart. “Five Reasons the Hong Kong Copyright Bill Failed: the political drama explained as Legislative Council debate ended over the controversial legislation,” South China Morning Post (Friday, 04 March 2016). Lu, Yi-hsuan and Liang-sheng Lin, “Taiwan Pushing to Join the CPTPP,” Taipei Times (16 November 2020), 1.

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Medeiros, John. “Real Purpose of the Copyright (Amendment) Bill Being Overlooked,” China Daily Asia (18 December2015). Ministry of Broadcast and Television, People’s Republic of China. “Provisional Rules on Administration of Audio and Video Recordings,” GuoFa[1982]154, December 1982. Ministry of Culture, People’s Republic of China. “Provisional Rules on Protection of the Copyrights of Published Works (draft),”1957. Ministry of Culture, People’s Republic of China. “Circular on Proper Implementation of Remuneration System and Appropriate Grasp of Remuneration Standard,” WenChuQiZi [1961]1216, August1961. Ministry of Culture, People’s Republic of China. “Trial Regulations on the Copyright Protection of Books and Periodicals,” WenChuQiZi[1984]849, June1984. National Copyright Administration, People’s Republic of China. “A Brief Explanation on the Amendment Draft of the PRC Copyright Law,”March2012. National Copyright Administration, People’s Republic of China. “PRC Copyright Law Amendment (second draft)” and “A Brief Explanation of the Changes and Improvements of the Second Amendment Draft of the PRC Copyright Law,”July2012. OGCIO, Hong Kong. “Fact Sheet: Hong Kong – An ICT Hub,”October2020. Patterson, Lyman R. Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, (1968). Patterson, Lyman R. and Craig Joyce. “Monopolizing the Law: the Scope of Copyright Protection for Law reports and Statutory Compilations,” 36(4) UCLA Law Review (1989), 719–814. Patterson, Lyman R and Stanley W. Lindberg. The Nature of Copyright: A Law of Users’ Rights (Athens, GA: University of Georgia Press, 1991). Pauwelyn, Joost. “The Jurisdiction of the WTO is Limited to Trade,”98 ASIL Proceedings of the Annual Meeting (2004), 135–146. People’s Republic of China and the United States of America. “China-United States: Agreement on Trade Relations” (signed 7 July 1979), 18(4), International Legal Materials (1979), 1041–1051. Reinbothe, Jorg and Silke von Lewinski. The WIPO Treaties on Copyright: a commentary on the WCT, the WPPT, and the BTAP (Oxford: Oxford University Press, 2015, 2nd ed.). Ricupero, Rubens and Ricardo Melendez Ortiz. “Preface,” in UNCTAD-ICTSD ed., Resource Book on TRIPS and Development (New York, NY: Cambridge University Press, 2005). Roffe, Pedro and Christoph Spennemann. “Control of Anti-Competitive Practices in Contractual Licences under the TRIPS Agreement,” in Carlos M. Correa and Abdulqawi A. Yusuf, eds., Intellectual Property and International Trade: The TRIPS Agreement (The Hague: Kluwer Law International, 2nd ed., 2008), 293–330. Sims, Alexandra. “Copyright and Contract,”22 New Zealand University Law Review (2007), 469–495. State General Administration of Publication, People’s Republic of China. “Decision on Redress Phenomena of Arbitral Book Copying,” ChuJiZi[1953]270, 1953. UNCTAD and ICTSD. Resource Book on TRIPS and Development (New York, NY: Cambridge University Press, 2005). WIPO. Records of the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, Vol. II (Geneva: WIPO Publications, 1999). WIPO Committee of Experts on A Possible Protocol to the Berne Convention (First Session). “Questions concerning A Possible Protocol to the Berne Convention: Part I,” BCP/CE/ I/2 (Geneva, 18 July1991).

182 The Origin of Copyright WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Third Session). “Questions concerning A Possible Protocol to the Berne Convention: Part III New Items,” BCP/CE/III/2-III (Geneva, 12 March1993). WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Third Session). “Report adopted by the Committee,” BCP/CE/III/3 (Geneva, 25 June1993). WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Fourth Session). “Report adopted by the Committee,” BCP/CE/IV/3 (Geneva, 9 December1994). WIPO Committee of Experts on A Possible Protocol to the Berne Convention (Sixth Session). “Comparative Table of Proposals and Comments Received by the International Bureau,” BCP/CE/VI/12 (Geneva, 10 January1996). WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions. “Amendment to Articles 7, 10, 13 and 14 of Draft Treaty No.1,” Communication from the Delegations of Algeria and 29 other African countries, CRNR/DC/56 (Geneva, 2 December1996). WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions. “Amendments to Partly Consolidated Text of the Draft Treaty No. 1(CRNR/DC/ 55),” Communication from the Chinese Delegations, CRNR/DC/64 (Geneva, 13 December1996). WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions. “Amendments to Partly Consolidated Text of the Draft Treaty No. 2(CRNR/DC/ 58),” Communication from the Chinese Delegations, CRNR/DC/71 (Geneva, 13 December1996). WIPO, International Bureau. “The Advantages of Adherence to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)” (2002). Wu, Handong, “From Responsive to Proactive Change: an examination on the third amendment of the PRC Copyright Law,”4 Studies in Law and Business (2012), 3–7. Yu, Peter K.“The Objectives and Principles of the TRIPS Agreement,”46 Houston Law Review (2009), 979–1046. Yu, Peter K.“Six Secret (and Now Open) Fears of ACTA,”64 SMU Law Review (2011), 975–1094.

Cases Gyles v. Wilcox, [1740] 3 Atk 143; 26 ER 489 US–Section 301 Trade Act WTO Panel Report, WT/DS152/R (22 December 1999)

7

Copyright Onto-Epistemology Knowing Is Being

Copyright came from a heroic moment of human history, yet remained thereafter in the Gutenbergian era (of the printed press) until the proliferation of global trade along with advances of information technology. As revealed in previous chapters, the advance of authorship has its own historical trajectory of development traced back to craftsmanship in the classical era, at a time when craftsmen of useful arts were put at the lowest stratum and legally separated from citizens.1 Technology made a difference. Copyright, as Goldstein pointed out, “was technology’s child from the start,” as it was the use of water power and the advent of printing technology, together with mass consumers’ demands replacing the preferences of a few royal, aristocratic, wealthy patrons that called for the protection of copyright.2 Copyright monopolies and franchises made rewarding royal favorites and increasing State revenue possible, while facilitating the decline of the low esteem attached to manual or slave labor and waning distinction between the liberal vs “servile” arts.3 This part of skill and labor was later on in modern copyright law recognized as “originality,” indicating a “personal touch” that substantiates copyright subsistence. The advent of a group of writers attempting to secure the economic viability of living by writing accompanied with the shift of writers from a skilled craftsman to an “inspired” agency, linked to a higher muse, facilitated the development of eighteenth-century modern authorship.4 While the birth of modern authorship depended on copyright entrepreneurship’s commercial success in monopolizing the book trade, copyright entrepreneurship, the Stationers’ Company at that moment, built their commercial success on mass readership demands replacing preferences of limited royal patrons. Modern copyright evolution started from the ontological interdependence between “authors, who give expression to ideas; publishers, who disseminate ideas; and the members of the public, who use the ideas,”5 a classical Gutenbergian copyright dynamics constructed around the expression, dissemination, and use of ideas and knowledge. Within this Gutenbergian ontological complex among authors, publishers and readers of the public, authorship made a gradual departure in the eighteenth century from skilled craftsmanship to embracing the element of inspiration to be identified as emanating from within the author, the “original genius.”6 The Statute of Anne 1710, therefore, hailed the inauguration of modern copyright by attributing copyright to the author’s creation and at the same time limiting its DOI: 10.4324/9781003163282-7

184 The Origin of Copyright protection within a certain period of time for the purpose of promoting public learning. The shifting Renaissance and neoclassical conception of writer as a vehicle of ideas to one transforming ideas afresh as expression of his own—the “imprint of a living human soul”—has profound epistemological implications.7 The pleasure of reading, rather than coming from the reader’s recognition of himself in a writer’s representations, as neoclassical doctrine suggests, “lies instead in the exploration of an Other, in penetrating to the deepest reaches of the foreign,” an active “divination into the soul of the creator.”8 A copyright work, as science and knowledge expressed in the product of an authorship’s knowing, is original only if it is created by “original genius” rather than represented by a skilled craftsman. This bears epistemological significance. The birth of epistemologically independent authorship within the Gutenbergian ontological complex is neither ahistorical nor space-time transcending, but rather, in a heroic moment of human history when we found the rise of creativity, capitalism, and the emancipation of individual autonomy. As Rose rightly pointed out in his seminal work Authors and Owners, “copyright is not a transcendent moral idea, but a specifically modern formation produced by printing technology, marketplace economics, and the classical liberal culture of possessive individualism.”9 The Statute of Anne’s inauguration of copyright’s modern era was at the time of social contract theory confirming individualist capitalism and the Industrial Revolution sweeping across the European continent, as well as the time of Newtonian classical physics constructing “strict determinism.”10 Newtonian classical physics’ strict determinism was a modern foundation of classical epistemological belief in representationalism and indeed provided indispensable epistemological support to copyright’s modernization, in particular its attribution to an original author achieving a perfect combination of the defense of individual autonomy and the cult of knowledge. The Statute of Anne’s attribution of copyright to author creation not only laid down the first mover of the copyright modernization, but also confirmed the birth of modern authorship and the foundation of “originality.” The originality test in common law, for example, is to identify “intellectual skill and brain labour, beyond the mere mechanical operation of writing,” or simply confirm “that the work must not be copied from another work— that it should originate from the author.”11 Originality, which is the soul of copyright protection, therefore insulates and epistemologically separates the individual proprietary interest of the author from any third party or government intrusion. Copyright development’s traditional contention between Classism and Romanticism sheds lights on this issue. While “classicism assumed that literary excellence had some relation to scholarship… in conjunction with learning and culture,” Romanticism rejected this and found the test of genius in originality, in which “only the complete ignoramus could be completely original.”12 Intertwined with literary criticism’s less friendly attitude towards imitation and less tolerance of imitative genius, the development of copyright in the UK and the USA saw a shift from Classicism to Romanticism, exemplified in Holmes’ insistence on copyright work as a “personal reaction … upon nature.”13 The underpinning individuality of Romantic originality’s roots in personality indicates Romanticism’s emphasis on individuality and on a Newtonian/Cartesian separability of knower and known.

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While the height at which the bar is set for copyright’s originality epistemologically separates authorship and the individual proprietary interest of the author from any third party or government intrusion, copyright application of the idea expression dichotomy doctrine, and even anti-counterfeiting trade’s defense of authenticity, separates the “known” from “knower.” According to the idea-expression dichotomy doctrine, copyright protects expressions not ideas per se, which has long been established in national and international legal frameworks.14 Although as Ginsburg argued, unprotectable ideas are not “epistemological concepts but legal conclusions,” but rather notions of “appropriate competition,”15 the doctrine creates an epistemological boundary between the author’s proprietary interest over the information expressed and the public’s access to information. The way of anti-counterfeiting trade’s defense of authenticity of the goods under the Anti-Counterfeiting Trade Agreement (ACTA) framework works similarly to the way of knowledge and intellectual property’s defenses of advanced and developed over backwards and under-developed in the WTO framework that implies an epistemological separation of us as the developed and them as the developing or under-developed.16 Under ACTA, criminal and civil enforcement procedures “shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes.”17 Therefore, the Newtonian/Cartesian epistemological separation of knower from known is deeply rooted in the contemporary copyright regime. As Patterson rightly pointed out, the Statute of Anne, was not “primarily a copyright statute,” but rather basically “a trade-regulation statute.”18 Entrepreneurship’s insistence on attributing copyright to the author’s creation, indeed, was primarily for securing market competition interests through book trade regulation.19 Interestingly, the birth of modern authorship and the evolution of the trading framework have since then been out of the purview of copyright entrepreneurship. In terms of copyright’s development in the book trade, on the one hand, copyright went global between the Berne Convention in 1886 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1995, then started going digital in the World Intellectual Property Organization (WIPO)’s promulgation of the Internet Treaties 1996. The evolution of authorship’s market interests, on the other hand, sees an expansion of the copyright monopoly where the right to “print, reprint and publish” evolved to “a right to reproduce a book for commercial purposes by making multiple copies on a printing process for the market.”20 The expansion of authorship monopoly eventually evolved from “a transformation of copyright from a monopoly for competitive, market place purposes only (‘monopoly for the market’) into a monopoly of the work per se or for all purposes (‘monopoly of the work’).”21 Copyright’s historical evolution of its expansion of monopoly indeed leads to copyright’s original sin, where the interest of copyright was laid down for control instead of to free the individual’s proprietary expression. Entrepreneurship’s attribution of copyright creation to authorship for securing market monopoly interest in the book trade was made possible and meaningful upon the expansion of mass readership beyond the limited royal patrons. Copyright law, therefore, works like an unfair competition regulation, functioning “to

186 The Origin of Copyright protect the copyrighted work against predatory competitive practices,” and copyright’s constitutional purpose of promotion of learning “is best served by encouraging the distribution of works.”22 Authorship protection, as the House of Lords articulated in Donaldson v. Becket, “is not only important to the author, but also to the public.”23 While the Statute of Anne recognized authorship’s central role in copyright, it is also limited for “public learning,” as “science and learning are in their nature publici juris,” and “[k]nowledge has no value or use for the solitary owner: to be enjoyed it must be communicated.”24 Along with the expansion of authorship from “monopoly for the market” to the “monopoly of the work,” there has also been the development of the idea-expression dichotomy doctrine and the evolution of the checks and balances of fair use/dealing and the three-step-test principle. Copyright, from the start, has expected an ontological balance between authorship, readership, and entrepreneurship evolving in trade upon support from technology as a copyright onto-epistemological force. The central theme of copyright jurisprudence, therefore, is how the balance will be drawn between individual proprietary interest in expression of knowledge and useful arts set against public interest in dissemination of knowledge and arts expressed, no matter whether in the analogue or digital age. The book’s copyright jurisprudential critique is structured around a nested mini- and grand-trilogy of the onto-epistemological dynamics around copyright protection of individual proprietary expression. On the one hand, the copyright mini-trilogy covers stakeholder onto-epistemology ranging from author-reader dynamics in internet freedom, existing-future author dynamics in the user-generated content (UGC) exception, and reader-entrepreneur dynamics in contract override discussion. On the other hand, the copyright grand-trilogy constructs copyright onto-epistemology around the intra-action between author-reader-entrepreneur tripartite stockholders, technology as the driving force, and trade as the evolution mechanism. Onto-epistemological complexity as seen in various issues in copyright digital reform as described above suggests that we are once again at a major crossroads like the moment of Statute of Anne’s birth, as the classical Gutenbergian ontological complex has been under significant challenge. The copyright regime is undergoing significant change in the digital era, driven by technological advances, with the disturbing background of free trade fragmentation. Technological advances, economic development, and an ideological divide, all on a colossal scale, transcend the Statute of Anne era, bringing uncertainty to copyright’s future reform. This epistemological uncertainty will shape the individual’s ontological status in knowledge creation, dissemination, and evolution in one way or another, and perhaps not always in a way that is desirable or even ethical. First, the various aforementioned issues upon copyright’s shift from the analogue to the digital era show significant onto-epistemological complexity, with at least two noticeable changes, i.e. technology’s role in copyright and the changing authorreader dynamics in a digital environment. On the one hand, from the very moment that copyright goes modern in the era of the Statute of Anne, technology, the use of water power, and printing technology in particular facilitated copyright development

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and supported the production and distribution of works. In the digital environment, technology becomes more than just the driver, but also the bearer of copyright protection and controls the access rather than dissemination of works, as seen in the copyright anti-circumvention regime. The implementation of the WIPO Internet Treaties’ anti-circumvention regime in the USA and Hong Kong facilitates both access control and copy control—the kind of perpetual proprietary control that the Stationers’ Company, the then entrepreneur, tried very hard yet failed to establish at the beginning of the modern copyright regime. On the other hand, the author-reader dynamics also changed, as the reader was not simply a reader in the analogue sense, but also a future author in the era of the participative web, as seen in UGC and secondary creation discussion. Copyright protection eventually sees a monopoly expansion that Patterson and Joyce categorized as “a transformation of copyright from a monopoly for competitive, market place purposes only (‘monopoly for the market’) into a monopoly of the work per se or for all purposes (‘monopoly of the work’).”25 Internet freedom, when associated with parody or secondary creation, presents ontoepistemological complexity in a network environment in a way never seen before as in the analogue era. Although copyright and free speech theoretically share with each other ontological interdependence in defending individual autonomy against government intrusion, an intra-play between politics and copyright failed Hong Kong’s attempts at adapting copyright for digital era. Second, trade as copyright’s onto-epistemological mechanism of evolution has evolved into a heroic moment of free trade fragmentation. From day one, when copyright went modern at the time of the Statute of Anne, trade has been indispensable to connecting copyright authorship, readership, and entrepreneurship, as Patterson rightly pointed out that the Statute of Anne was primarily a “trade regulation statute.” Copyright ontological interdependence between authorship, readership, and entrepreneurship started its evolution through the book trade at the very founding moment of the modern copyright regime in the Statute of Anne era. In copyright’s early evolution, the intimacy between copyright and censorship was the key that facilitated the birth of modern copyright under the needs of regulating the book trade order.26 Supported by technological development, copyright entrepreneurship’s commercial success in literary creation, although facilitating the birth of modern authorship, was founded indeed on censorship control, which is indeed copyright’s original sin. The later incorporation of intellectual property rights in general or copyright in particular into the WTO framework, saw the law and development paradox in TRIPS birth defect.27 Frameworks like ACTA’s defense of copyright authenticity in anti-counterfeiting trade sees the further implication of TRIPS’ ontological deficit. In addition to the significant challenges brought by digital technology development, the recent proliferation of free trade frameworks offers tremendous challenges. Moreover, the context of the classical Gutenbergian ontological dynamics between copyright author, publisher, and user public structured around the expression, dissemination, and use of ideas has been significantly reshaped with the proliferation of global free trade and advent of information technology. Even with the seminal recognition of copyright’s author-publisher-user dynamics, Patterson,

188 The Origin of Copyright the iconic copyright authority, acknowledged half a century ago that copyright’s early maintenance of the book trade monopoly order has been changed and taken on new dimensions of “freedom of the press and speech rather than press control and censorship.”28 In fact, the context of copyright evolution might have changed more dramatically upon copyright entering the information age. Goldstein’s capture of the copyright evolution from Gutenberg, the Celestial Jukebox to the cloud between his two editions of Copyright’s Highway, provides a vivid picture of the evolving complexity of the copyright onto-epistemological dynamics shaped by technological advances.29 Common law copyright’s recognition of both producer and principal director as the default co-authors of a film, for example, certainly distinguishes contemporary authorship-entrepreneurship dynamics from the Gutenberg era.30 The evolving recognition of entrepreneurship can also be found in the European Union Database Directive’s provision of a “sui generis right” protection “for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment” in the business, in addition to normal copyright protection for those qualified.31 The Gutenbergian copyright ontological dynamics as to expression, dissemination, and the use of “ideas” among author, publisher, and user, as Patterson has categorized, has certainly been evolving and has changed. The copyright ontological trilogy described earlier in this volume indeed indicates that stakeholder in relation to idea dissemination goes beyond the publisher to entire copyright-related entrepreneurship, ranging from publisher, information infrastructure and service provider to information industry investors. To better reflect the post-Gutenbergian copyright ontological dynamics in relation to the expression, dissemination, and use of ideas among authors, entrepreneurs, and readers, the book uses authorship-readership-entrepreneurship dynamics throughout its copyright onto-epistemological critique. However, technology evolution or trade fragmentation in the digital environment, or the post-Gutenbergian ontological dynamics, do not change the nature of copyright being an individual’s proprietary expression. Copyright protection of the private-right-in-nature individual expression is, however, qualified by the originality test, the idea-expression dichotomy doctrine, and fair dealing/use checks and balances upon technology advances alongside trade fragmentation. The epistemological expression of copyright protection is also mutually implicated with local political reform and the influence of geopolitical reality as well. The above examination of the onto-epistemological complexity between authorship, readership, and entrepreneurship indicates that copyright’s protection of individual proprietary expression as knowing in being is indeed an integral part of being. Knowing is indeed being. Indeed, both the originality test that evolved from Classicism to Romanticism in relation to the evolving knower and the idea-expression dichotomy doctrine’s demarcation between the protected and unprotected known or the doctrine’s further extension to the tension between fair and unfair dealing/use justify the discussion of copyright onto-epistemology. Copyright is indeed the onto-epistemology of proprietary individual expression.32

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This brings us back to the beginning of the birth of modern copyright, at a time when strict classical Newtonian/Cartesian determinism underpinned the birth of the modern authorship—an influence that has penetrated the evolution of the copyright regime up until the contemporary era. Copyright protection can undoubtedly be grounded on Lockean or Hegelian property theory—a birth of the self-sufficient legitimacy concept together with the separation of the knower from the known in the process of individualizing knowledge (the knowing) from the public, which creates the copyright onto-epistemological deficit.33 However, both Lockean and Hegelian property theory implies an anticipation of the acceptance of others—an onto-epistemological win-win rather than a zero-sum relationship between the private and others. Both Lockean and Hegelian limitations on private property, if duly recognized, would certainly cure the onto-epistemological deficit reflected in copyright’s isolation of the author when individualizing knowledge. From practical Lockean or Hegelian limitations to TRIPS’ categorical balance of rights and obligations, for the copyright regime, these are indeed an onto-epistemological elevation to a higher moral ground, giving copyright a sense of humanity. Copyright was born in a heroic era of human history where the classical Gutenbergian ontological dynamics structured copyright between author-publisheruser around the expression, dissemination, and use of “ideas.” This heroic moment sees the beauty of independence, autonomy, and the power of creativity pushing us almost unlimitedly as far as we are right now. While classical strict determinism is under significant challenge, the proliferation of global trade and the advent of information technology show us the beauty and possibility of interdependence, or even intra-dependence, between copyright authorship, entrepreneurship, and readership, which calls for a fresh copyright onto-epistemology. Originality’s Classicism vs Romanticism demarcation, the idea-expression dichotomy doctrine, fair use/ dealing practice, and the balance of rights and obligations philosophy should be understood as copyright categorical imperatives showing win-win rather than zero-sum relationships between the individual and others. This fresh jurisprudential copyright onto-epistemology not only offers the deepest theoretical explanation of copyright justification, but also gives copyright a sense of humanity by revealing the win-win rather than zero-sum ethical nature of the balance of interests. Copyright, law, and justice all need to be onto-epistemologically balanced, as this is categorically imperative for being, which is the fundamental law of nature.

Notes 1 Bruce W. Bugbee, Genesis of American Patent and Copyright Law (Washington, DC: Public Affairs Press, 1967), 12. According to Bugbee, Plato’s Republic put craftsman of useful arts to the lowest stratum, and described craftsman, who should be legally separated from citizen, with contempt. 2 Paul Goldstein, Copyright’s Highway: from the Printing Press to the Cloud (Stanford, CA: Stanford University Press, 2019, 2nd ed.), 17. 3 Bugbee, Genesis of American Patent and Copyright Law, 12–17.

190 The Origin of Copyright 4 Martha Woodmansee, The Author, Art, and the Market: Reading the History of Aesthetics (New York, NY: Columbia University Press, 1994), 36–37. 5 Lyman R. Patterson, Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968), 224–225. 6 Woodmansee, The Author, Art, and the Market, 37. 7 Woodmansee, The Author, Art, and the Market, 54. 8 Woodmansee, The Author, Art, and the Market, 55. 9 Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993), 142. 10 See discussion supra 1.1.1 for more details. For the Newtonian strict determinism and Bohrian revolutionized quantum physicist critique, see Barad’s brilliant analysis, Karen Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (Durham, NC and London: Duke University Press, 2007), 97. 11 Walter v. Lane [1900] AC 539; University of London Press v. University Tutorial Press Ltd [1916] 2 Ch. 601. 12 Kenneth B. Umbreit, “A Consideration of Copyright,” 87(8) University of Pennsylvania Law Review (1939), 953. 13 Benjamin Kaplan, An Unhurried View of Copyright (New York, NY: Columbia University Press, 1967), 23–25, 34–35. 14 See, § 102(b), US Copyright Act of 1976; Art. 9.2, TRIPS Agreement; Art. 2, WCT 1996. 15 Jane C. Ginsburg, “Copyright,” in Rochelle Dreyfuss and Justine Pila eds, The Oxford Handbook of Intellectual Property Law (Oxford: Oxford University Press, 2018), 503. 16 See discussion supra 1.2.3, for more details on law and development critique of the TRIPS or the WTO; for more details on TRIPS’ development deficit, see also Wenwei Guan, Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014), 115–153. 17 Art. 27.2, Anti-Counterfeiting Trade Agreement. 18 Patterson, Copyright in Historical Perspective, 14. 19 Patterson, Copyright in Historical Perspective, 150. 20 Lyman R. Patterson and Craig Joyce, “Monopolizing the Law: The Scope of Copyright Protection for Law reports and Statutory Compilations,” 36(4) UCLA Law Review (1989), 792–798. 21 Patterson and Joyce, “Monopolizing the Law,” 798. 22 Lyman R. Patterson, “Free Speech, Copyright, and Fair Use,” 40(1) Vanderbilt Law Review (1987), 6–7. 23 Donaldson v. Becket, [1774] Hansard, 1st ser., 17 (1774): 955, note 1. 24 Donaldson v. Becket, [1774] Hansard, 1st ser., 17 (1774): 999–1000. 25 Patterson and Joyce, “Monopolizing the Law,” 798. 26 Kaplan, An Unhurried View of Copyright, 3. 27 See discussion supra 6.3.3. For more discussion on TRIPS’ “birth defect,” see Guan, Intellectual Property Theory and Practice, 5–7. 28 Patterson, Copyright in Historical Perspective, 224–225. 29 As a leading copyright authority, Paul Goldstein published Copyright’s Highway in both 1995 and 2019: Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (1st Edition. New York, NY: Hill & Wang, 1995); Paul Goldstein, Copyright’s Highway: From the Printing Press to the Cloud (2nd Edition. Palo Alto, CA: Stanford University Press, 2019). 30 See, e.g. ss 9 and 10, UK Copyright, Designs and Patents Act 1988 (CDPA 1988). 31 Art. 7, Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases.

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32 There have been occasional ontological or epistemological discussions of intellectual property in the literature, for example, Drahos’s discussion of the relationship between creativity, individualism and IP ontology and a touch on the epistemological issue; see Peter Drahos, A Philosophy of Intellectual Property (Dartmouth Publishing Co. Ltd., 1996), 54–62, 214. See also Wenwei Guan, “Ontology, Legitimacy and Time,” in Intellectual Property Theory and Practice, 159–166. 33 See discussion supra section 1.3.1 for more discussion on copyright onto-epistemology deficit and section 5.2.2 on intellectual property’s self-sufficient ontological myth.

Bibliography General Barad, Karen. Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (Durham, NC and London: Duke University Press, 2007). Bugbee, Bruce W. Genesis of American Patent and Copyright Law (Washington, DC: Public Affairs Press, 1967). Drahos, Peter. A Philosophy of Intellectual Property (Brookfield, VT: Dartmouth Publishing Company, 1996). Ginsburg, Jane C. “Copyright,” in Rochelle Dreyfuss and Justine Pila, eds, The Oxford Handbook of Intellectual Property Law (Oxford: Oxford University Press, 2018), 487–516. Goldstein, Paul. Copyright’s Highway: from the Printing Press to the Cloud, 2nd ed (Stanford, CA: Stanford University Press, 2019). Guan, Wenwei. Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Heidelberg: Springer, 2014). Kaplan, Benjamin. An Unhurried View of Copyright (New York, NY: Columbia University Press, 1967). Patterson, Lyman R. Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968). Patterson, Lyman R.“Free Speech, Copyright, and Fair Use,” 40(1) Vanderbilt Law Review (1987), 1–66. Patterson, Lyman R. and Craig Joyce. “Monopolizing the Law: the Scope of Copyright Protection for Law reports and Statutory Compilations,” 36(4) UCLA Law Review (1989), 719–814. Rose, Mark. Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993). Umbreit, Kenneth B.“A Consideration of Copyright,” 87(8) University of Pennsylvania Law Review (1939), 932–953. Woodmansee, Martha. The Author, Art, and the Market: Reading the History of Aesthetics (New York, NY: Columbia University Press, 1994).

Cases Donaldson v. Becket, [1774] Hansard, 1st ser., 17 (1774) University of London Press v. University Tutorial Press Ltd, [1916] 2 Ch 601 Walter v. Lane, [1900] AC 539

Index

abuse: contractual 108; copyright 134; right holder’s 28, 52, 104, 106; IPRs’ 52, 107, 108, 137, 168; technological measures 136, 170 access control 119, 121–132, 134, 137–139, 165, 170, 171, 187 access to internet 56 acts restricted 82, 129, 130 Anglo-American: copyright doctrine 15, 26; kinship 3; skepticism 104, 164 anti-circumvention 47, 118–128, 130–131, 133, 136–139, 154, 164–167, 169–172, 187 anti-competition practices 28, 104 anticompetitive: contractual abuses 108; contractual practices 108; practices 107, 137, 168 anti-counterfeiting trade 50, 185, 187 authenticity 10, 185, 187 authorship see authorship, readership and entrepreneurship author function 10 author’s right 2, 3, 6, 7, 23, 157 author-reader dynamics 30, 186, 187 authorship-readership-entrepreneurship: (tripartite) dynamics 31, 32, 188; ontological complexity 96 authorship, readership and entrepreneurship: balance of interests 59; ontological isolation 84; (ontological) balance 93, 97, 105, 109, 110, 121, 123, 131, 132, 135, 138, 139, 172, 186; ontological complexity 97, 156, 188; ontological interdependence 109, 187; onto-epistemological dynamics 154, 161 balance of rights and obligations 27–30, 51, 93, 94, 104–106, 108, 109, 118,

119, 132, 137–139, 161, 164, 166–168, 171, 189 Barad, Karen 29, 30, 32n1, 40n217 Berne Convention 3, 4, 28, 31, 44, 51, 52, 55, 68, 77, 78, 80, 81, 118, 128–130, 132–135, 137, 138, 163, 171, 185 birth defect, TRIPS 170, 187 Bohr, Niels 29, 30, 32n8, 40n217, 190n10, book trade 2, 5, 6, 8, 9, 133, 153, 154, 161–164, 167, 171, 183, 185, 187, 188 book trade order 6, 171 broadcast: broadcast decryption (in general) 135, 169; broadcasting 49, 130, 157, 165; broadcasting right 133, 160, 163, 165; re-broadcasting 165 capitalism: and Industrial Revolution 2, 18, 74, 184; and individualism 29; and freedom of contract 103; competitive capitalism 103 Cartesian: Cartesian reduction 19; Newtonian/Cartesian separability 16, 184, 185; Newtonian/Cartesian determinism 189 categorical: copyright categorical imperatives 189; categorical balance 29, 189; categorically imperative 189 censorship 2, 5, 6, 8, 9, 52, 54, 55, 75, 83, 154, 161, 162, 172, 187, 188 chilling (effect) 57, 76 circumventing devices 124 city-state 5, 6 Classicism 8, 12, 14, 23–26, 184, 188, 189; see also Romanticism commercial purpose (purposes) 7, 49, 77, 126, 153, 185 circumventing devices competition: competition (in general) 6, 8, 9, 13, 28, 102, 104, 107, 137, 162,

Index 193 167, 168, 172; economic competition 134; market competition 29, 167; competition control 172; competition law/ regulation 164, 167, 172; competition policy 167, 172; competition interest 153, 172 Constitutional Convention, the 12 contract override 31, 94, 97–101, 104, 106, 108, 109, 123, 154–156, 186 copy control 121, 122, 124, 187 copyright: authorship 44, 93, 105, 109, 110, 121, 153, 154, 187, 189; circumvention 122, 123; entrepreneurship 123, 153, 183, 185; evolution 4, 7, 26, 31, 118, 119, 154, 160, 162, 164, 183, 188; exception/exceptions 48, 69–73, 77, 79, 83, 93, 94, 96–98, 102, 105, 106, 108, 109, 120–123, 132, 134, 135, 139, 155, 163, 164; infringement 47, 58, 69, 71, 78, 81, 83, 125, 126, 130; imperatives 94; integrity 31, 161; interests 51, 118; modernization 118, 128, 184; monopoly 7, 8, 153, 185; registration 75, 158, copyrightable 54, 55 counterfeiting 107, 137, 168 craftsman (craftsmanship) 11, 183, 184 criminalization 45–50, 57, 95, 120, 122, 155 criminal sanctions 48, 49, 57, 70, 121, critical perspective 11, 13 cyberspace 6, 7, 44, 131 “Cyberspace Article 23” 45, 47, 49–51, 54, 56, 58, 59, 69, 71, 95, 96, database 12, 188 decryption see broadcast decryption derivative right 68, 70 Digital Millennium Copyright Act (DMCA) 4, 44, 45, 50, 70, 76, 95, 118, 123, 124, 128–131, 139, 155, 165 digital network environment 4, 44, 68, 70, 80, 84 digital networks 51, 120, 185, direct effect 171, 179n153 dispute settlement mechanism 4, 106, 137, 168, driving force 16, 31, 118, 119, 186 European Court of Justice (ECJ) 50, 79, 102 empiricist/empiricism 24–26; see also innatist Enlightenment 18, 19, 37n136

entrepreneurship see authorship, readership and entrepreneurship evolution mechanism 31, 186 facts 13, 14, 55, 132, filtering: epistemological filtering, 14; filtering systems 50, 131 first mover 10–13, 184, fixation 165 “forgotten ideas of copyright” 7, 9 format-shifting 125; see also space-shifting and media-shifting Foucault, Michel. 10, 63n71 free will 20–22, 24, 26, 29, 52, 101, 103 freedom of contract 96, 99, 101–105, 109, 176n82 freedom of speech 44–51, 53–59, 72, 74, 76, 95, 96, 109 free speech 31, 45, 50, 51, 53–55, 59, 68–71, 73–77, 80, 83–85, 94–97, 109, 122, 154, 155, 156, 187, freedom to information see information general exception 108 Geneva Diplomatic Conference 136, 139, 169 graduated response 56–58 granted privileges 3, 10, 30 Gutenberg: Gutenbergian ontological complex 183, 184, 186; Gutenbergian ontological balance 162; Gutenbergian (ontological) dynamics 162, 171, 183, 187–189; Gutenbergian era 172, 183; Gutenbergian (copyright) structure 10; Post-Gutenbergian copyright ontological dynamics 188 Hegel, G. W. F.: Hegel (in general) 20–22, 26, 27, 101, 103; Hegelian “free will” 24, 26, 29; Hegelian limitations/ modification 26–29, 103, 134, 189; Hegelian personality theory 19; Hegelian “prerogative and the principle of the organic” 27, 29, 134, 138, 139; Hegelian property separation 22; Hegelian property theory 22, 24, 26, 28, 52, 53, 103, 189 incentive 13, 23, 55, 57, 75, 132 individuality 8, 15, 16, 22, 23, 26, 184; see also individualism individualism: development 75; laissez-faire individualism 103, 104, 109; possessive

194 Index 10, 184; metaphysics 2, 29, 30; see also individuality Industrial Revolution 1, 2, 18, 54, 74, 103, 184; see also capitalism information: dissemination of information 46, 58, 134, 163; access to information 131, 132, 137, 185; freedom to information 50, 131, 138; diffusion of information 166; free flow of information 48, 57; reception of information 130 injunction 50, 131 innatist/innatism 24–26; see also empiricist innovation 20, 22, 28, 51, 52, 93, 104, 155, 166 inseparability 29, 30; see also intrinsic separability Internet: internet access 50, 56, 57; internet behavior 79; internet freedom 44, 46, 49, 95, 154, 186, 187; internet piracy 48, 97, 122, 155; internet service sector 48, 56, 73; internet service providers (ISPs) 131, 158 (see also OSPs); Internet Treaties 4, 31, 44, 47, 68, 80, 81, 93, 95, 118–121, 123, 126, 131, 135, 137–139, 155, 158, 159, 164, 167, 169–172, 185, 187; internet users’ interests 80 intra-action/active 29, 30, 166, 172, 186 intra-play 30, 31, 40n217, 159, 161, 164, 187 intra-dependence 189 intrinsic separability 2, 29, 40n210; see also inseparability inventor 11, 12, 16, 162 investment 15, 123, 167, 188 investor/investors 11–13, 16, 188 ISP liability see liability Italian city-states, 5, 6 “just desserts” 20, 24, 26, 29; see also Lockean property theory Kant 12, 27–29 Kaplan, Benjamin. 14, 15, 23, 26 knowing in being 2, 10, 25, 26, 30–32, 32n1, 188 laissez-faire see laissez-faire individualism law and development 18, 19, 187 (common) law of nature 26, 29, 103, 104, 189 liability: criminal liability 57, 71, 121, 122; ISP liability 158; Online Service

Providers (OSPs) liability 44, 46, 48, 58, 97, 122, 155; P2P liability 57 literary: literary creation 5, 7, 24, 161, 187; literary criticism 14, 23, 184; literary ownership 15; literary piracy 1; literary property 1, 131 Loke, John.: Locke 2, 11, 12; Lockean labor theory 19, 25; Lockean limitation 26–29, 103, 104, 189; Lockean property theory 20, 21, 24, 26, 28, 52, 53, 101, 189; Lockean separation 22 low authorship works 15 market: market access 7; market competition 29, 185; market effect 7, 125, 133, 163; market efficiency 109; market interests 24, 185; market place 7, 123, 153, 185, 187; market failure 133, 134, 161, 163, 164, 167; free market 99, 164; monopoly for the market see monopoly marketable right 13, 75, 119, 132 media-shifting 48; see also space-shifting and format-shifting Merges, Robert. 12, 24, 27, 28 metaphysics of individualism see individualism Middle Ages 5 modification of property 27, 103; see also Hegel monopoly: monopoly for the market 7, 8, 12, 153, 185–187; monopoly of the work 7, 8, 12, 153, 185–187; monopoly rights 98; perpetual monopoly interest 28, 132; (Stationers’ Company) guild monopoly 2, 6, 131, 162; monopoly interest 154, 156, 157, 158, 162, 167–168, 185, moral right/rights 3, 23, 24, 104, 135, 164, 169 National Copyright Administration (NCAC), PRC. 157, 158 negative right/rights 45, 51–53, 55, 56, 58, 59, 75, 76, 100, 102, 104, 106, 128, 129, 131, 139, 171 negative right in rem 131–133, 139, 171 Newton, Isaac.: Newtonian ontoepistemology 2, 40n217; Newtonian physics 2, 29, 30, 32n8; Newtonian Separability of knower and known 16, 184, 185; Newtonian “strict determinism” see “strict determinism”

Index 195 New International Economic Order (NIEO) 3, 106–108 “Norwich Pharmacal” principle 57 Notice and Notice 58 Notice and Takedown 58 onto-epistemology: copyright onto-epistemology 16, 19, 29–31, 138, 153, 164, 171, 172, 183, 186, 188, 189; ontoepistemological balance 26, 105, 118, 172; onto-epistemological deficit 18, 21, 22, 24, 29, 119, 189; onto-epistemological separation 29, 118, 119 ontology: ontology 10, 22, 25, 29, 30, 51, 56, 68, 74, 109, 128, 133, 164; ontological balance 66, 93, 94, 109, 110, 121, 123, 125, 128, 131, 132, 135, 138, 139, 161, 162, 167, 172, 186; ontological interdependence 47, 51, 53, 55, 56, 58, 59, 68, 74, 77, 83, 84, 96, 101, 105, 109, 155, 160, 164, 167, 172, 183, 187 original sin, copyright’s 5, 7, 8, 185, 187 originality test 14, 81–83, 184, 188 Online Service Providers (OSPs) 44; see also internet service providers(ISPs) Online Service Providers (OSPs) liability see liability parody exception 68–72, 74, 79, 80, 83, 84, 94–96, 122, 155 participative web 68, 73, 81, 84, 97, 187 peer-to-peer (P2P) file-sharing 50, 57 perpetual common law right 131 perpetual copyright 2, 6, 162 perpetual monopoly 28, 132 perpetual property 131, 139, 187 perpetualist 25, 26 personality 8, 15, 16, 19, 21, 24, 26, 29, 184 positive right/rights 53, 55, 76, 100, 129 piracy: copyright piracy 6, 71, 120; online piracy 7, 58; cyberspace piracy 7; software piracy 7; internet piracy 48, 97, 122, 155; piracy control 48, 50, 120, 121, 123 positive community 20, 21 “prerogative and the principle of the organic” see Hegel press control 6, 9, 161, 188 privacy 24, 27, 47, 57, 131 private ordering 154, 164, 171 proliferation, trade 10, 31, 153, 154, 156, 160, 161, 172, 183, 187, 189

proprietary expression 7, 10, 18, 25, 26, 31, 123, 161, 185, 186, 188, public domain 7, 10, 29, 47, 136, 170, public interest 28, 104–106, 108, 109, 125, 131, 132, 136, 153, 162, 164, 166, 186, public learning 7, 8, 10 11, 28, 128, 131, 138, 184, 186 Regional Comprehensive Economic Partnership (RCEP) 159–161, 165–167, 171, 172, readership see authorship, readership and entrepreneurship Renaissance 5, 11, 19, 184 representationalism 2, 29, 32n8, 40n210, 184 reproduction right/rights 8, 13, 80, 82, 130, 134 res nullius 22 right of communication 44, 48, 49, 56, 70, 71, 95, 97, 122, 155 rights in persona 131 rights in rem 131 RMI (RMIs) 158, 160, 165, rights management information 47, 158, Romantic authorship 14, 16, 23, 29, 54, Romanticism 8, 12, 14, 16, 23–26, 184, 188, 189; see also Classicism Rose, Mark. 10, 11, 13, 24, 27, 184 safe harbor 58, 97, 159 sanctity of contract 99, 103, 104, 164 secondary creation 68, 69, 72–74, 77, 80, 81, 83, 84, 90, 96, 154–156, 187 self-sufficiency 22, self-sufficient 101, 189 singularity 22, 24, 29, social construction 11 social contract theory 2, 74, 184 space-shifting 125; see also format-shifting and media-shifting stationer’s copyright 2, 161, 162 Stationers’ Company 5, 6, 131, 161, 162, “strict determinism” 2, 29, 36n119, 184, 189, 190n10 subsistence 78, 105, 183, sui generis right 12, 188 “sweat of the brow” doctrine 14, 20, 82, 83, 90n104, 132 technologization 11 technology advance 31, 158, 188 technology neutral 48, 49, 94, 155

196 Index Third Amendment, PRC Copyright 158 three-step test 4, 9, 30, 70, 73, 77–81, 84, 96, 97, 105, 134, 135, 158, 186 three-strike rules 159 totality 22, 39n170 technological protection measures (TPMs) 127, 158, 165 trade fragmentation 160, 161, 164, 166, 167, 171, 172, 186–188 trade-regulation statute 6, 153, 185 transfer and dissemination of technology 51, 104, 166 transformative use 79 TRIPS: TRIPS birth defect see birth defect; TRIPS fragmentation 167, 172; TRIPS negotiations 4, 106, 107, 108, 137, 167, 168, 171; TRIPS’ philosophy 28, 30, 104, 105, 119, 137, 138; TRIPSalternative 167; TRIPS-different 161, 167; TRIPS-plus 161, 167, 172

User-generated content (UGC) exception 9, 68–70, 73, 74, 77, 79, 80, 83, 84, 96, 123, 155, 156, 186, unauthorized communication 45, 48, 49, 95, 122, 155 Uruguay Round 4, 106, 107, 168, US Supreme Court 13, 20, 54, 56, 63n77, 75, 76, 132, 133 Vienna Convention on the Law of Treaties (VCLT) 1969 106, 108, 138 Victorian: Victorian belief 103, 104, 164; Victorian laissez-faire individualism 109; Victorian reliance 164; Victorian tradition 104, 164 Woodmansee, M. 11, 35n77 WTO: WTO enforcement 4, 6; WTO negotiation, 171