Two years ago we submitted our opinion on the 2007 amendment bill
because we felt that the prevailing copyright ordinance and the
proposed amendment were extremely biased to wealthy intellectual
property owners and professional litigators who preyed on frivolous and
malicious legal claim. Because of the practice of the biased copyright
law and the rampant activities of frivolous or unethical litigators, we
were forced to adopted the most “
defensive mode of operation”
including suspending more than 95% of our retailing business, some
input/output services, and the overwhelming use of disclaimer. Ordinary
people, most probably including the government officials may think that
the disclaimer preceding this proposal looks rather odd or ridiculous.
To be honest, we are in fact demonstrating an inevitable procedure in
the course of our operation taken as a resigned defensive measure
for the protection of us against frivolous claim from malicious and
unethical litigators. We have reasons to believe that the culture
of disclaimer is exactly a consequence of some sort of "
intellectual corruption"
manifested by the abuse of law and legal procedure intended for
legal extortion of which more and more are related to copyright or
intellectual property.
After two years since the last amendment to the copyright ordinance,
though the web 2.0, which featured by spontaneous response and
interaction among peers on the net has been further consolidated as the
common standard of internet in the mean time, we saw little improvement
in the philosophy behind the new consultation paper released in 2009.
Furthermore, from the presentation of the guest speakers in a seminar
held by the “
Internet Society Hong Kong (ISOC HK)”
1,
we felt that the view of government officials and law drafters were
still overshadowed by the influence of the wealthy tycoons of
conventional content provider whose mindset remained unchanged in the
rapid changing environment triggered by the digital revolution of
communication technology, leading to an imbalanced legal
framework biased to wealthy copyright holders while ignoring the appeal
of users, traders, network providers and even primary creators. Being a
trader, service provider and primary creator, we genuinely respect
copyright but must express to you and all people that the prevailing
copyright ordinance does not benefit us and so will be the proposed
amendment. Certainly it is infringing the interest of general public.
2. Fundamental Concepts Re-examined
2.1. Public Interest Vs Private Interest:
The title of the bill itself tells that the law draftsman tended to
give higher priority to the interest of copyright owners than the
general public. If our society protects the minority interest because
we denounce the tyranny of majority, for what reason we recognize the
exception of tyranny of minority in dealing with copyright? This is
inconsistent to the philosophy as always stated by the government who
admits that public interest is the major concern in the process of
policy making. If public interest is ranked prior to the minority
interest, instead, it is more appropriate to change the title of the
bill into something like "seeking to promote the public interest in the
digital environment whilst maintain proper protection for copyright as
an incentive to creation and invention" or "seeking a reasonable
balance between the public interest and the interest of copyright
owners in the digital environment". As a matter of fact, wealthy
copyright owners are the hardliners and backbone of the advocates
demanding for strictest copyright protection while the vulnerable class
and their sympathizer are on the opposite side, thus making the
copyright protection nothing more than another exhibit of the
tyranny of wealthy minority over the ordinary majority. We must ask
what convince us to embrace a technological progress if it will not
benefit but even harm the general public.
2.2 Public Space Vs Private Space:
In physical world, it seems that it is easy to draw a line that divides
the private space and public space. However, on the internet, public
space and private space are not well defined. Hardliners of copyright
protection tend to see it a public space as a whole where all
activities should be scrutinized and regulated like the public space in
the physical world.
We deny the proposition because we think that the “cyber space” is the natural extension of the physical space of human world which means that private zone should also be admitted. If
our society punishes an internet user for shareing a digital file with
his peer on the other side of the internet, in accordance with the same
logic, a reader will be punished if he shares a newspaper with
his colleagues in the office, thus messing up the private and
public space we formerly admit in the physical world. The fear is not
merely a groundless conjecture but a real instance in the real
world. A per user levy scheme was once considered for the
licensed use of a server operation system. Thinking about the huge
number of spontaneous internet users logging in the server, any people
will see the absurdity of the pricing policy. Probably because of the
strong resentment of users and the practical problem in enforcing the
licensing scheme, it has never been the common practice for
pricing the software. However, various restrictions are imposed on the
transfer of ownership so as to confine the purchaser's right (the right
to resell and dispose) to the purchased software. Obviously, the demand
for stricter legal sanction is indeed a skillful shift of the
immense enforcement cost of an unjust pricing policy from the vendors
themselves to the government or the society as a whole.
2.3. Protection Of Copyright Vs Protection Of Income:
With no doubt many people think that the protection of copyright is
practically the protection of income of the copyright owners.
Nevertheless, whether a piece of copyrighted work can be productive of
income depends on a lot of factors but not just the cost of
production. All people should respect copyright but it does not mean
that the society should guarantee the income of copyright owners. The
lobbyers for stricter copyright control try to equate these two
concepts and turn it into an institution. Being a humble member of
creative industry, we fully understand the misery situation of artists
on account of the attitude of most people towards creative service. For
instance, up to now, many people, including the government
purchasers, still think that graphic design is and should be a
free service to be provided early in bidding for a job or together with
printing service. Who care how much it costs for the provision of
the service or stuff especially when free and legal stuff are really
available in the real world?
Furthermore, not all the intellectual properties bear a market value
which are in fact determined by the demand for them. The calculation of
damages based on the total volume of "illegal"(i.e. Unauthorized) copy
or download is misleading. Firstly, the said quantity cannot be taken
as the actual effective demand at the intended retail price in the
light that the marginal cost for download is almost zero. There may be
no valid demand at a price higher than the download cost
2.
An illustration of the rationale may be found in the levy /royalty (a
few to ten thousands dollars per month per premises) imposed on the
retail shops for playing background music/songs in their premises. Most
of the shops we know simply cut the budget for buying CD titles and
adhere to the saying of "silence is gold", hence resulting in a
downfall of the sales volume which manifests a very elastic
demand in response to the fee scheme. Secondly, it is hard to say if
the distribution is harming or benefiting the copyright owner or not.
Surely we understand the saying is controversial and ethically
incorrect supposing that the distribution is against the will of the
copyright owner. However, if the copyright owner is willing to pay the
mass media a huge advertising fee for propagandizing the promotion
trailer, the issue is just a matter of a shift of mind (or a "paradigm
shift" in sociology jargon) from the traditional promotional channel to
the new channel. To resolve or reconcile the conflict, to our best
knowledge, many foreign artists start to earn their income from live
performance and other activities that are unable to be
substituted by downloadable files while releasing the recording of
their work freely on the internet. Some prominent computer firms like
IBM, HP and Oracle offer their clients with freeware but rely on
their services for the generation of income. We choose to internalize
the cost by spreading it into the spending of R&D or promotion.
2.4. Protection Of Copyright Vs Limitation Of Circulation:
Again people lobbying for stricter copyright control seem to confuse
the protection of copyright with the limitation of circulation. From
years' experience and observation, we realize that copyright work may
be provided free of charges for many reasons. Some creators,
represented by the founders and their followers of
GNU GPL licence 3 and
Creative Commons licence 4,
who see knowledge as public property, value not the money income but
the joy of sharing and the freedom of attaining knowledge. In another
case, some artists as mentioned in
2.3 may rather let their work be distributed freely in order to increase their public exposure.
2.5. Coincidence Vs Plagiarism:
Almost all the hardliners of copyright protection avoid discussing the possibility of “
coincidence of similarity”.
In reality, there are numerous cases disapproving the hypothesis. Long
time ago in the history when continents are isolated by geographical
barriers, similar theories were developed by scholars living in
separate localities simultaneously. Pythagorean Theorem was discovered
by ancient Greek and Chinese mathematicians in almost the same era. The
invention of calculus was claimed by both Newton and Leibniz
simultaneously. Except scientific findings, artistic creation cannot be
free from the controversy over the determination of originator and
copycat. Many famous musicians or song writers had gotten into endless
quarrels or lawsuits with each other on “
plagiarism”. We have heard that musicians have an old saying, "
Adam and Eve wrote the first song and everyone has ripped them off ever since."
Perhaps only people who are either extremely arrogant or naive dare to
claim that their idea is unique among seven billion people in the
world.
The prevailing institution, however, awards as well as rewards the
wealthy class or game player who knows the rule of game well which in
the end gives rise to a new profession of copyright litigation. On the
top of the profession is a group of knowledgeable people who
deliberately registered some vague or premature ideas with the
authorities for patents, then awaiting for the emergence of target prey
who launches materialized products or services using similar ideas
after doing a lot of research and development. On the middle level are
frivolous litigators who take advantages of the complicated litigation
procedure and expensive litigation cost to blackmail their target
preys. On the lowest level are rascal who simply extort their victims
by making false accusation with false evidence or statement. The most
cynical cases can be easily found in western countries in which many
renowned corporations that maintain very high profile in fighting
intellectual piracy in Hong Kong and developing countries have been
convicted guilty of copyright infringement in the court rooms or
pleaded for off-the-court-room settlement. Should we interpret the
scenario as hypocrisy or indeterminability of intellectual
property?
If these “giants of intellectual property” fail to comply with the
copyright law for mixed reasons, how can the owner of a small firm be
able to know the legality of every job or every piece of items he is
dealing in. In a case, we still could not be sure if a torch offered by
a manufacturer would be free from allegation of "infringement" to any
patented design or not after having spent a whole working day to
cross-examine all the records on the web site of Intellectual Property
Department. we deny that our ignorance or stupidity should account for
our scepticism. Frankly speaking, the overwhelming legal claims based
on allegation of plagiarism made by professional lawyers have confused
our common sense of imitation. Most of the cases could have only been
explained by the abuse of the defect of our judicial system. We
have reasons to believe that many of the cases have been ended up with
settlement in favour of the frivolous and unethical litigators off the
court room. So long as the legal system is still inclined to accept
plagiarism rather than coincidence in case of similarity and fails to
incorporate a mechanism to deter frivolous litigators from abusing the
legal procedure, mediation is not a cure for the lawsuit abuse but may
be even worse. By referring to the current "payment into court" system
which is a litigation fee allocation arrangement for penalizing tough
or stubborn litigators unanimously regardless of the jurisdiction,
including the victims of false accusation or frivolous litigation, we
envisage the danger arising from the misleading message of mediation as
a solution to lawsuit abuse.
2.6. Public Property Vs Private Property:
The concept of copyright was created for awarding the contributors who
make contribution to enrich the intellectual heritage of human society
but reserved an enormous room for all other people to further enrich
and develop the existing civilization.
5
To our best understanding, copyright was originally designed for the
protection of a distinctive means for accomplishing a certain
ends or a special pattern of expression for delivering a certain
message. It did not prevent other people from achieving the same goal
with other competing approaches.
6
Moreover, unlike physical commodities or inalienable (non-rival)
services, knowledge, in economic sense, once published, is by default a
public good attainable to all people.7 Thus on one extreme some people
insist that knowledge should be regarded as public property free for
all people due to its very nature of public good while on the other
extreme some people try to turn it into private property from which all
the derived benefit is to be appropriated by the owner only. We tend to
accept the former view with some reservation for three reasons.
2.6.1. Natural Right Of Access To The Existing Knowledge:
At first we believe that all people should have the freedom to learn
and use the knowledge which has already been made known to the public.
Let alone human beings, even animals learn from the behaviour of
parents or peers by observation and imitation. This is not a
surrealistic idea of utopian idealists but has been proved to be the
source of thrust leading to the progress of human civilization. Long in
the history, many great thinkers, artists and scientists have chosen to
shape our world with their achievements or discoveries without any
direct reward. In recent time, a prominent example for the contribution
of free knowledge is the internet which is basically built on open
source software such as Unix/Linux and Apache in accordance with open standard like TCP/IP and html.
The success of wikipedia is another proof for the value of free
knowledge (we intentionally use the information gathered mainly from
wikipedia to remark on some special terms or concepts for its free
licence). In addition, a lot of organizations including commercial
firms like "Google" and non-commercial bodies like Mozilla Foundation, a non-profitable making body leading the project of Firefox and Thunderbird,
have demonstrate a profitable or sustainable mode of operation with
open source freeware. Being a small enterprise, we support freedom of
using knowledge as it allows us to compete fairly with wealthy
competitors with our competence in attaining and mastering new
technology. Therefore, we strongly object the extension of copyright
protection period once and again to refrain copyright works from
entering the public domain even longer than the average life of human
beings.
2.6.2. Natural Right Of Creation And Developing Knowledge Free From Interference:
Instead of using open access knowledge, it is self-explanatory and
absolutely a natural right for all people to work out their own
solution to accomplish a certain task along with all other people in
the world. For example, except Coca Cola, there is Pepsi Cola
or else beverage co-exist in the market. The flavour and taste of all
these drinks (i.e. The goal or task) are similar but the formula and
production process (i.e. The method or solution) are different.
We object a system in which either "the winner takes all" or "the wealthy takes all".
It seems to us that the legislation has been gradually moving in this
direction under the influence of some wealthy copyright owners who are
not even the primary creators but advocate a more extensive protection
of copyright to cover not only the method but also the goal, thus
excluding all other competitors from providing compatible solutions and
messing up the competition with infringement. The prevailing
patent system, ignoring the effort and achievement of all competitors
on the assumption that the registered patent owner is the first and the
only one among all competitors to be awarded. We object the
restriction to fair competition in the name of copyright protection by
banning all activities except that carried out by the one who happens
to claims proprietary right to the solution intended for the same
purpose.
2.6.3. Freedom Of Panorama Vs Copyright Infringement:
Freedom of panorama (FOP)8 as
a fair use of copyrighted work and the protection of public space are
interrelated. If a piece of copyrighted work is put in a public place
but the owner claims titleship to all artworks derived from it, it is
equal to a privatization of the public space. We can hardly imagine how
tourism would be harmed without FOP.
A tourist would not be able to take even a legal scenery picture of our
harbour or street as they are occupied overwhelmingly by copyrighted
objects such as promotion signages and proprietary designed
buildings. We maintain that all public sites on internet should
also be recognized as public space in the digital world and the concept
of FOP should be equally
applicable to the internet otherwise any web surfer will commit a crime
unknowingly while caching a site he visits. If a copyright owner
really minds the public exposure of his works, simply removes it from
the site accessable to the public, puts it in restricted or paid zone
and protects it with copyright mark. As a humble member of creative
industry, we frankly do not think that the redistribution of our works
with the source of origin being kept intact will infringe our interest.
On the contrary, we feel that the advantages from the externality of
the widespread circulation only benefit us. Moreover, in the digital
world, if copyright protection covers coding pattern down to the level
of programe module performing a specific function, which is so common
in computer programming analogous with everyday dialog like "thank you"
or "good morning" in our daily life, all programmers will be
encountering the danger of being prosecuted for copyright infringement.
Surely we do not deny that we have reservation about the above three
norms. Our reservation is rooted in the practical payback problem of
research and development cost for some technologies like pharmacy which
accrues a very high research and development cost in terms of time,
effort and money but the details of result must be disclosed to the
public for some sorts of reason such as public safety, and/or the test
cost being significant yet production too simple and easy to be copied.
Hence we accept exceptions for some knowledge as public property.
Patent, a legal arrangement for rewarding the owner who intended to
grab money with the registered invention in a finite period of time by
coercively enforcing the restriction of unauthorized (or unpaid) use of
the knowledge, was originally an attempt to maintain a balance between
the conflicted interest of individuals and general public.
Nevertheless, patent is too powerful in the light that it not only
restricts the specific means of achieving ends but may also bans all
other purposely activities conducted via alternative approaches.
Its adverse effect on competition is more significant than common
copyright protection. Being a small firm, we hope that the standard of
criteria for granting patent remain strict especially in dealing with
the copyright of digital products or technologies which are featured by
extremely short life cycle so that healthy competition will not be
hindered.
2.7. Trade Protectionism Vs Copyright Protection:
Perhaps people demanding for stricter copyright protection have never
blamed parallel import for copyright infringement but they are surely
the anchorman insisting restriction of parallel import.
We
cannot understand how a group of social elite can suppress the
dissident view of anti-globalization with high sounding free trade
theory on the one hand but advocate restriction on the parallel import
especially for multimedia products on the other hand. They are indeed
adopting double standard over the behaviour of multinational enterprise
chief and individual consumer. If the wealthy tycoons can
choose the lowest cost manufacturer in various countries to produce
their products based on the beautiful theory of “
Logistics” or “
Global Supply Chain”,
it is equally reasonable for any consumer to choose the best priced
products regardless of the country of origin. Restriction is by
nature a trade barrier intended for market segregation for capturing
consumer surplus irrelevant to copyright protection.
2.8. Presumption Of Permission Vs Presumption Of Forbiddence:
Perhaps the most far-reaching adverse effect of the recent copyright
protection strengthening movement initiated mainly by the tycoons of
traditional media and content providers on our society is the
destruction of the fundamental belief of our civic life. For a very
long time the western countries has kept praising the superiority of
their culture of freedom and rule of common law which adopts i
nnocence presumption 9.
A citizen may do anything if it is not forbidden by law. Our social
leaders also proudly declare that our judicial system is built on the
same ground and repeatedly promise to us the same beautiful world.
However, the ever increasing strict copyright authorization validation
requirements have casted an absolute uncertainty over the
behaviour of every entity in our society. Nobody can be sure if his
action is permitted or not. As mentioned in previous section, if the
"giants of copyright" who always blame the underdeveloped countries for
piracy of intellectual property are even convicted guilty of copyright
infringement under the jurisdiction of their judicial system, how can a
humble trader or individual consumer possess the necessary knowledge
and resources to verify whether a merchandise or service complies with
the copyright law? Can our law makers, law professionals or law
enforcing department chiefs tell us how to conduct a reliable "prior
art search"
10 which can
certainly free people from the terror of being accused of copyright
infringement for either the coincidence of similarity or indeed
frivolous claim from malicious and illicit litigators? Can they teach
all people how to comprehend the details of licence written in esoteric
legal jargon and verify the validity of the authorization of billions
of paid or unpaid stuff either in digital or physical format available
to the public so as to free all people from the fear of committing the
offence of violation of the
EULA (End User Licence Agreement)
unintentionally? In the light that we never be sure who else in the
world possessing similar ideas has claimed or will claim proprietary
right formally prior to other people, the determination of the
ownership of intangible concepts can never be so clear and certain as
physical goods, and the proof for the permission is practically beyond
the capacity of ordinary people under the "reinforced copyright
ordinance", the presumption of forbiddence will inevitably
replace presumption of permission in dealing with copyrighted
materials as a self-defensive measure". In other words, all traders are
assumed to be guilty except they have "perfect" information about the “
prior art”
as well as the proof of the authorization from the de facto ultimate
owner. For the peace of mind, we simply suspend most of the retail
business. Should we say that the copyright ordinance is successful in
the protection of copyright or just a destruction of mutual trust of
our society?
2.9. Free Culture Vs Permission Culture:
We frankly think that the manner of our law makers towards all the
above mentioned contrary concepts has been biased to the wealthy
copyrighted content providers in the last few decades under the
influence and pressure of the tycoons of these giants of copyright. The
restriction to the fair use of intellectual property has been
intensified at a faster pace especially when centre of physical
production was shifting from the west to the east. As copyright is an
artificial attribute of knowledge endowed by human beings, the
expansion of the right preclude more people from using the knowledge
regardless of their mentality.
Some
privileged minority may monopolize the knowledge and capture huge
wealth by granting permission for the use of knowledge which they
nominally owned but is not necessarily created by them. Free culture
11 which recognizes freedom of thinking as a natural human right is under the challenge of this permission culture
12 established on the ground of unrestrained expansion of copyright. The proposal for building a “
central hub”
for the central regulation or filtration (censorship?) of all
information passing through is a highly dangerous and selfish idea
which is again an action seeking for the short term benefit of minority
at the sacrifice of the long term benefit of the general
public. Needless to point out the minimal feasibility
arising from the technical and financial problem of recruiting immense
computing power for "filtering” (censoring) the immense data
throughput, the political correctiveness behind the idea is
controversial for its very nature deemed to be hazardous to free
culture by common sense.
3. Defficiency Of The Prevailing Legal Framework And The Proposed Amendment:
In addition to the biased manner towards the aforesaid contrary views,
the prevailing legal framework and the proposed amendment lack the
following provisions for qualifying it a good law.
3.1. Lack Of The Provision
Against Frivolous Lawsuit, Abuse Of Litigation And Illegal Collection
Of Evidence Like Phishing, Enticement, And False Evidence:
The problem of lawsuit abuse has long been a consequence of the
institutional defect of our legal framework. Our social elites have
never admitted the problem. They always rely on the
self-discipline of the law profession and claim that no evidence to
prove the existence of abuse while ignoring the fact that many of
the cases are settled off the court room without a trace in the record
for the immense litigation cost.
Even
worse is that the high legal charges was misinterpreted as a
shortage of lawyers which has ended up with a rapid increase of
the enrollment of law school. In turn the increasing supply stimulates
the growth of abuse of litigations as described by the famousSay's Law 13
in Economics which states that “supply creates its demand”. Then
copyright protection has become one of the most convenient reasons
among all for triggering a frivolous legal claim. Without
prejudice to anybody, if the authority and law makers are willing to
hear the voice of victims of legal blackmail, we are willing to present
to them our experience and knowledge in details about how copyright
owners, law professionals and private investigators can form a dream
ally of perfect fraud without fear of facing any sanction by means of
lawsuit abuse in case any one party of them is deceptive.
3.2 Lack Of Critical And Independent Thinking:
To our best knowledge, all the official illustrations of the current
ordinance and proposed amendment only embrace the views of the wealthy
tycoons of content providers without any critical and independent
thinking.
Paid permission (i.e.
permission upon payment from user) granted by copyright owner seems to
be the only way or the default form recognized by our government to
acknowledge copyright. While the money incentive to the creation
is emphasized, the subtle negative effect of the presumed forbiddence
on the economy and the enormous social cost accrued for enforcing the
protection of the overvalued copyrighted materials based on this
assumption are ignored. The overstated loss of copyright infringement
has never been queried. The merits, feasibility, potential and
contribution to the society of free intellectual property either in
public domain or released under free licence like GPL or Creative
Commons are not even mentioned. This serious bias has refrained any
further exploration into the promotion of free intellectual property
and its feasible mode of business.
3.3. Lack Of Recognition, Promotion And Protection Of Free Knowledge:
If the protection of copyright
is regarded as the duty of a responsible government in protecting the
private property of any entity in the society, it should be her divine
mandate to protect the intellectual properties in public domain
for the whole society. She should record, organize,
host and offer them freely to the public as a preservation of the
valuable common legacy of human beings.
14
Moreover, for awarding generous entities who contribute their works
freely to the public without asking for a penny, the government should
endorse their behaviour with some kind of assistance or recognition. To
our best understanding, there is neither a provision in our legal
framework for the prevention of privatization of intellectual property
in public domain nor a legal recognition of the licence of free
intellectual property, thus hindering the acceptance and application of
free knowledge. We were told by the executives of some firms that they
are forbidden to use freewares without additional service pledge or
warranty from the creators or third party service providers according
to their code of using software. It is deemed that the liability of
using freeware including but not limited to the frivolous claim for
copyright infringement is one of the major reasons. We do not
understand why the government is so enthusiastic in protecting the
profit of some wealthy money seekers even though they may not deserve
if examined through strict authentication process but reluctant to
promote and encourage the use of free intellectual properties such as
providing a legal waiver for the users of freeware or setting up a
registration system of free stuff for the recognition and protection of
the donators.
3.4. Lack Of Clarity And Simplicity For Good Law:
If
clarity and
simplicity
are two of the many qualities of good law as mentioned in the ABC of
law theory, the current copyright ordinance is hard to meet the
standard. Let alone the readability problem of legal jargon, we cannot
find a clear, simple and unambiguous definition of "
similarity", "
passing off" or "
essential
portion" in the ordinance. We are not informed of the source to which
we can resort for the most authoritative data base for validating the
copyright status. We do not know what we are allowed to do with a
genuine product such as a format shift conversion even though we duly
pay the money. We do not know if we should trust the oral authorization
of a customer requesting for the production of a product which is
claimed to be owned or designed by him. Conclusively speaking, we do
not know how to comply with the ordinance.
4. Conclusion:
In the end, we emphasize that we respect copyright and private
ownership. Hence we quote and credit the source of free stuff, and pay
for commercial products if we choose to use them. However,
we object a
bad law in the sense that law abiding people do not know how to observe
it and evil minded people may abuse it.
We must ask the government and our lawmakers the final question about
the ultimate purpose of technological progress. If the progress brings
most of our people the ever graver problems of digital divide,
polarization of wealth distribution, monopolization of knowledge, fear
of frivolous lawsuit, limitation of freedom in our daily life, etc.,
how can we be convinced to embrace the digital
revolution?
We believe that technology is
neutral. All the aforesaid adverse effects are the result of an
imbalance of institution biased to some privileged minority. Some other
people support it because they have been misled or misinformed.
We may find thousands reasons accounting for the irrelevance between
wealth and contribution. The copyright law cannot fundamentally rectify
the problem shortly but on the contrary may worsen the situation if it
goes extreme. What have been proved is that the copyright law has
made a lot of pop singers and media tycoons be billionaires in the last
century but leave a lot of great thinkers, artists and scientists in
rather common or even humble living condition. Though they may not be
rich in the enjoyment of material comfort, we can be sure that they are
rich in their spiritual life and will be recognized by most people to
be great persons in the history.
We should apologize for lacking the knowledge and language power to
pack our opinion with rhetoric and high sounding theories as the think
tank of those wealthy tycoons. Yet we are sincere. We are suffering
from the deficiency of the legal framework. We see the danger of the
reform or revision of copyright law if it is continuously hijacked by
the privileged minority and promises too much to many people of
mediocre talent who intend to make a huge fortune with their mediocre
work or performance.
- END -
Remarks:
1. Seminar held by the “Internet Society Hong Kong (ISOC HK)” on 28/1/2010
2. Effective Demand:
The demand
schedule, depicted graphically as the demand curve, represents the
amount of some good that buyers are willing and able to
purchase at various prices, assuming all determinants of demand other
than the price of the good in question, such as income, personal
tastes, the price of substitute goods, and the price
of complementary goods, remain the same. Following the law of
demand, the demand curve is almost always represented as
downward-sloping, meaning that as price decreases, consumers will buy
more of the good.
Demand curves are determined by marginal
utility curves.[2] Consumers will be willing to buy a given
quantity of a good, at a given price, if the marginal utility of
additional consumption is equal to the opportunity
cost determined by the price, that is, the marginal utility of
alternative consumption choices. The demand schedule is defined as
the willingness and ability of a consumer to
purchase a given product in a given frame of time.
The demand curve is generally downward-sloping. There may be rare
examples of goods that have upward-sloping demand curves. Two different
hypothetical types of goods with upward-sloping demand curves
are Giffen goods (an inferior but staple good)
and Veblen goods (goods made more fashionable by a higher
price).
3. GNU GPL:
The GNU
General Public License (GNU GPL or simply GPL) is a
widely used free software license, originally written
by Richard Stallman for the GNU project.
The GPL is an example of a powerful copyleft license that
requires derived works to be available under the same copyleft. Under
this philosophy, the GPL grants the recipients of a computer
program the rights of the free software definition and
uses copyleft to ensure the freedoms are preserved, even when the work
is changed or added to. This is in distinction to permissive free
software licenses, of which theBSD licenses are the standard
examples.
4. Creative Common:
Creative
Commons (CC) is a non-profit organization headquartered
in San Francisco, California, United States devoted to expanding
the range of creative works available for others to build
upon legally and to share.[1] The organization has released
several copyright-licensesknown as Creative Commons
licenses for free to the public. These licenses allow creators to
communicate which rights they reserve, and which rights
they waive for the benefit of recipients or other creators.
An easy to understand one-page explanation of rights, with associated
visual symbols, explains the specifics of each Creative Commons
License. This simplicity distinguishes Creative Commons from an all
rights reserved copyright. Creative Commons was invented to create a
more flexible copyright model, replacing "all rights reserved" with
"some rights reserved." Wikipedia is one of the notable
web-based projects using one of its licenses.
The organization was founded in 2001 by Larry Lessig, Hal Abelson and
Eric Eldred[2] with support of the Center for the Public Domain.
The first set of copyright licenses were released in December
2002.[3] In 2008 there were an estimated 130 million works
licensed under Creative Commons.[4] Creative Commons is governed
by a board of directors and a technical advisory board. Esther
Wojcicki, journalism teacher from Palo Alto, CA, is currently the chair
of the board. Creative Commons has been embraced by many as a way for
content creators to take control of how they choose to share their
intellectual property. There has also been criticism that it doesn't go
far enough.
5. Origin of Copyright:
6. Exception and limitation of copyright:
Two
important examples of limitations and exceptions to copyright are
the fair use doctrine found in the United States, and
the fair dealing doctrine found in many other common
law countries. Other more fundamental boundaries of copyright are
caused by thresholds of originality, a threshold below which
objects cease to be copyrightable, the idea-expression dichotomy,
the public domain and the effect of Crown copyright.
Even copyright maximalists might interpret these
as defining copyright, rather than being "limitations" or
"exceptions" to it. In addition copyright can only protect the artist's
expression of his/her work and not the ideas, systems, or factual
information conveyed in it.[1] Likewise, the US court systems have
determined that stock charactersare also uncopyrightable.
7. Public good /non-rival good:
In economics,
a public good is a good that
is non-rivalrous and non-excludable. Non-rivalry means
that consumption of the good by one individual does not reduce
availability of the good for consumption by others; and
non-excludability that no one can be effectively excluded from using
the good.[1] In the real world, there may be no such thing as an
absolutely non-rivaled and non-excludable good; but economists think
that some goods approximate the concept closely enough for the analysis
to be economically useful.
Many forms of creative works have characteristics of public
goods. For example, a poem can be read by many people without reducing
the consumption of that good by others; in this sense, it is
non-rivalrous. Similarly, the information in most patents can be used
by any party without reducing consumption of that good by others.
Creative works may be excludable in some circumstances, however: the
individual who wrote the poem may decline to share it with others by
not publishing it. Copyrights and patents both
encourage and inhibit the creation of such non-rival goods by providing
temporary monopolies, or, in the terminology of public goods, providing
a legal mechanism to enforce excludability for a limited period of
time. For public goods, the "lost revenue" of the producer of the good
is not part of the definition: a public good is a good whose
consumption does not reduce any other's consumption of that good
8. Freedom of Panorama:
Panorama
freedom allows for taking pictures in public places. It is
usually subject to special regulations in local copyright
laws with the goal of granting reasonable freedom
for photography in public space. Such laws, generally, allow
photography of publicly visible buildings and non-private
scenes from public places for the purposes of publishing. The
actual extent of possible allowed usage of a picture taken in a public
place is usually wider and depends upon the particular formulation of
the law or clause that grants the possibility.
http://en.wikipedia.org/wiki/Wikipedia:Freedom_of_panorama
http://commons.wikimedia.org/wiki/Commons:Freedom_of_panorama
9. Presumption of Innocense:
The presumption
of innocence – being considered innocent until proven
guilty – is a legal right that the accused
in criminal trials has in many modern countries.
The burden of proof is thus on the prosecution, which
has to collect and present enough compelling evidence to convince the
trier of fact, who is restrained and ordered by law to consider only
actual evidence and testimony that is legally admissible, and in most
cases lawfully obtained, that the accused is guilty beyond
a reasonable doubt. In case of remaining doubts, the accused is to
be acquitted. This presumption is seen to stem from the Latin
legal principle that ei incumbit probatio qui dicit, non qui
negat (the burden of proof rests on who asserts, not on who
denies).
10. Prior Art Search:
Prior
art (also known as state of the art, which also has other
meanings, or background art), in most systems
of patent law, constitutes
all information that has been made available to the public in
any form before a given date that might be relevant to a patent's
claims of originality. If an invention has been described in
prior art, a patent on that invention is not valid.
Information kept secret, for instance, as a trade secret, is not
usually prior art, provided that employees and others with access to
the information are under a non-disclosure obligation. With such an
obligation, the information will typically not be regarded as prior
art. Therefore, a patent may be granted on an invention, although
someone else already knew of the invention. A person who used an
invention in secret may in some jurisdictions be able to claim "prior
user rights" and thereby gain the right to continue using the
invention. As a special exception, earlier-filed and
unpublished patent applications do qualify as prior art as of
their filing date in certain circumstances.
In order to anticipate a claim, prior art is generally expected to
provide a description sufficient to inform an average worker in the
field (or the person skilled in the art) of some subject matter
falling within the scope of the claim. Prior art must be available in
some way to the public, and in many countries, the information needs to
be recorded in a fixed form somehow. Prior art generally does not
include unpublished work or mere conversations (though according to
the European Patent Convention, oral disclosures also form prior
art). It is disputed whether traditional
knowledge (e.g., of medical properties of a certain
plant) constitutes prior art.
Patents disclose to society how an invention is practiced, in return
for the right (during a limited term) to exclude others from
manufacturing, selling, offering for sale or using the patented
invention without the patentee's permission. Patent offices deal with
prior art searches in the context of the patent granting procedure. To
assess the validity of a patent application, patent offices explore the
prior art that was disclosed before the invention occurred (in
the United States) or before the filing date (in the rest of the
world).
11. Free Culture:
The free
culture movement is a social movement that promotes the
freedom to distribute and modify creative works in the form
of Free content by using the Internet and other forms of
media.
The movement objects to overly restrictive copyright laws.
Many members of the movement argue that such laws
hinder creativity. They call this system "permission culture".
Creative Commons is a well-known website which lists licenses that
permit free sharing under various conditions. Creative Commons, which
was started by Lawrence Lessig, also offers an online search of various
creative-commons-licensed productions.
The free culture movement, with its ethos of free exchange of ideas, is
of a whole with the free software movement. Richard Stallman, the
founder of the GNU project, and free software activist, advocates
free sharing of information. He famously stated free software means
free as in “free speech,” not “free beer.”
Today, the term stands for many other movements, including hacker
computing, the access-to-knowledge movement and
the Copyleft movement.
The term “free culture” was originally the title of a 2004 book
by Lawrence Lessig, a founding father of free culture movement.
12. Permission Culture:
Permission
culture is a term often employed by Lawrence Lessig and
other copyright activists to describe a society in
which copyright restrictions are pervasive and enforced to
the extent that any and all uses of copyrighted works need to be
explicitly leased. This has both economic and social implications: in
such a society, copyright holders could require payment for each use of
a work and, perhaps more importantly, permission to make any sort
of derivative work.
Permission culture also refers to the mentality (assumed to be
encouraged by copyright law) in which people feel that there is a moral
obligation to ask for permission before sharing others' work, or before
re-using existing work as part of some new work.
This term is often contrasted with remix culture.
13. Say's Law:
Supply
will always create its own demand with one caveat at a certain price
level. Think about it like this if you sold MP3 players eventually the
price would get so low that the scrap metal value in them would be
worth the price and they would all be liquidated. And if for example
the firm had more money invested in its inventory than could be
recovered by selling the inventory then bankruptcy court would take
care of that for them. Say's Law!
14. Public Domain Intellectual Properties:
The public
domain is an intellectual property designation for the
range of content that is not owned or controlled by anyone. These
materials are "public property", and available for anyone to use freely
(the "right to copy") for any purpose. The public domain can be defined
in contrast to several forms of intellectual property; the public
domain in contrast to copyrighted works is different from the
public domain in contrast
to trademarks or patented works. Furthermore,
the laws of various countries define the scope of the public
domain differently, making it necessary to specify which jurisdiction's
public domain is being discussed.
The public domain is most
often discussed in contrast to works whose use is restricted
by copyright. Under modern law, most original works of art,
literature, music, etc. are covered by copyright from the time of their
creation for a limited period of time (which varies by country). When
the copyright expires, the work enters the public domain. It is
estimated that currently, of all the books found in the world's
libraries, only about 15% are in the public domain, even though only
10% of all books are still in print; the remaining 75% are books which
remain unavailable because they are still under copyright protection.
The public domain can also
be defined in contrast to trademarks. Names, logos, and other
identifying marks used in commerce can be restricted as proprietary
trademarks for a single business to use. Trademarks can be maintained
indefinitely, but they can also lapse through disuse, negligence, or
widespread misuse, and enter the public domain. It is possible,
however, for a lapsed trademark to become proprietary again, leaving
the public domain.
The public domain also
contrasts with patents. New inventions can be registered and
granted patents restricting others from using the inventions without
permission from the inventor. Like copyrights, patents last for a
limited period of time, after which the inventions covered by them
enter the public domain and can be used by anyone.
The governments of western
countries always cooperate with educational institutes and museums in
collecting, recording, organizing, hosting and offering the public
domain intellectual properties to the general public. For instance, in
the USA, the Library of Congress, National Park Service, Census
Bureau, National Defence Department, NASA, etc are providing
various public domain intellectual properties to the public for almost
unrestricted use.