由寇恩的法律典範論數位著作權法制之形成

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行政院國家科學委員會專題研究計畫成果報告

由寇恩的法律典範論數位著作權法制之形成

研究成果報告(精簡版)

計畫類別：個別型計畫編號： NSC 95-2414-H-004-011- 執行期間： 95 年 08 月 01 日至 96 年 07 月 31 日執行單位：國立政治大學法律學系計畫主持人：陳起行計畫參與人員：碩士班研究生-兼任助理：林倍志處理方式：本計畫可公開查詢

中華民國 96 年 09 月 25 日

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行政院國家科學委員會補助專題研究計畫成果報告

由寇恩的法律典範論數位著作權法制之形成

計畫類別：X 個別型計畫 □ 整合型計畫

計畫編號：NSC

95-2414-H-004-011-執行期間： 95 年 8 月 1 日至 96 年 7 月 31 日

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計畫參與人員：

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執行單位：國立政治大學法律系

中華民國 96 年 9 月 25 日

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中文摘要

寇恩的法律典範在自發性法律的規制模式上有所改良，尤重自律的規制。本文擬以該法律典範檢視數位著作保護法律的形成問題。隨著網際網路的普及，數位著作之著作權保護課題急迫又極具爭議。無論就網際網路的規制或數位著作權保護程度，均形成理論以及執行上的難題。重視自發性，互生性以及原則性的寇恩法律典範，強調個別問題解決與公共意見形成乃至法律基本原則等的相互成全，是否能為極其複雜的數位著作保護，提供適當的規制模式，是本研究所要探索的主題。

Abstract

The new legal paradigm of Jean Cohen improves the reflexive regulatory theory, placing its emphasis on the regulated self-regulation. This research examines the law making of the protection of the digital copyrighted works based on Jean Cohen’s legal paradigm. The coming of the Internet age brings forward the urgent and controversial issues of digital copyright. These issues are difficult both theoretically and in terms of enforcement, no matter one perceives them from the point of view of Internet regulation or copyright protection. Cohen’s legal paradigm emphasizes reflexivity, co-originality and legal principle, and treasures the mutual enabling between the local solutions and forming of public opinions and legal principles. Whether such legal paradigm can serve as an adequate regulatory model for digital copyright protection is the focus of this research.

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前言本年度研究主題是承接上一年度的專題計畫，更進一步將研究焦點放在，以魯曼（N. Luhmann）系統論為基礎所發展的自發性法律（reflexive law）。雖然在德國，這方面理論的發展主要由Teubner 主導，在美國則有許多學者，並不以系統論出發，也發展了多樣的自律法律理論。Jean Cohen 是美國哥倫比亞大學（University of Columbia）政治系的教授1 。她在Teubner 的基礎上試圖提出一項改良的模式，目的是要改善自發性法律私有化(privatization)及去管制化 (de-regulation) 的傾向，而無法真正做到 Selznick 所強調的回應（responsiveness） ; 也就是自律的同時持續保持整體法律原則的維繫。本年度的研究一方面深入闡述 Jean Cohen 的想法，並試圖運用其新法律典範觀察，批判數位著作保護的法律發展。數位著作保護是十分受到重視的法學研究領域，充滿的多元的理論及實踐上的想法與建議，如何將這些豐富的學理及社會實踐的經驗，納入國家法律形成的過程，是值得鑽研的課題。Jean Cohen 的新法律典範是否能提供理論基礎，更是本年度專題計畫有意深入探索的議題。

一．

研究目的申請人認為，數位著作的保護，涉及許多不同意義脈絡下不同的保護考量。而同時在眾多不同的保護方案間，維持其原則上並未背離調和公益與私利等著作權基本原則，更是其困難所在。寇恩的新法律典範，似乎很適合作為架構不同著作權理念，與眾多地區性解決方案(local solution)2 之間，相互檢驗，相互啟發，相互補充的規制架構基礎。一方面，有助於釐清數位著作保護理念的合理性及落實可能性; 另一方面，個別數位著作規範環境下，基本權利義務關係，應該亦得以呈現其初期整全(integral) 的輪廓。本計畫擬先闡明寇恩的新法律典範，及其在解決數位著作保護課題上可能的優越性所在。繼而整理美國學界就數位著作保護所提出之主張，及所論述之法律原則，做一整理，並加以比較分析，探索其理念核心。在此一基礎工作上，本計畫擬進一步就數位音樂或其他幾項數位著作的保護，其在執行面所面臨的困境，以及學者們所提出的保護主張間，展開整理，分析工作; 並試著 1

Cohn, Jean, Regulating Intimacy, A New Legal Paradigm, 2002,Princeton, Oxford: Princeton University Press

2

舉例而言，如數位音樂mp3, p2p問題; 數位資料庫的資料再利用問題; 數位著作授權契約是否應當審查，以及審查尺度的問題; 防盜拷錯失之違反與處罰問題，以及各類型的數位著作之合理使用問題等。

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與先前整理的數位著作保護理念對話。其目的在探索數位著作保護的基本原則，以及國家法律（主要包括立法，與法院裁判）與自律環節（如系統業者，仲介團體以及各種商業同業公會，公益團體），在寇恩法律典範指導下，應該如何進行分工，以及應如何提供其他環節重要的法律社會事實，以形成健全的數位著作權法制。此一規制架構下，何以能突破現在法制上所面臨的數位著作保護困境，是本項研究結論主要著墨之處。

二．

文獻探討本年度研究計畫所涵蓋的文獻，在法學理論上，延續過去報告人理論基礎的文獻，只是更加深入。基本上，Cohen 同意 Teubner 綜合論述理論，系統論及回應型法律理論的理路，只是權衡重要性的分配上，有所差異。Cohen 發展其新法律典範的過程，更重視 Habermas 論述理性以及 Selznick 法律原則的理論。然而其理論所秉持的法律原則，與德沃金有重要差異，也值得進一步檢視。這是本年度計畫所涉及理論部分的文獻來源，請參考所附英文論文的參考文獻。此外，本年度試圖將數位著作法律理論及實踐上的重要文獻檢視一番，並進一步探討 Jean Cohen 新法律典範是否可以為數位著作保護的法律形成提供新的思維。數位著作保護此一法學研究議題，目前受到極大多數的法學者的重視，論文量也因此特別多，本計畫由所發展出來的研究路徑，做了相當多的選擇。請參考所附本年度計畫執行時完成的中文論文的參考文獻。四、研究方法與結論報告人本年度研究計畫執行期間，以所附英文論文發表於 2007 年奧地利薩爾斯堡舉行的法資訊學國際研討會，並陸續修訂，目前已經投稿; 中文論文，探討美國近年來針對數位著作保護所提出得相當豐富的理論主張，因涉及時效，所以及早完成投稿，已經於 2007 年 6 月由台大法學論叢出版，成果豐富。基本上，就資訊法律課題而言，如何結合公領域及私領域，共同為形成資訊法規範，是必然要走的道路。報告人將持續在此一研究路徑上，更加深入掌握法律實踐及法律理論上的議題。並思考如何進一步運用網際網路提升法行程過程的參與（eParticipation）。六.自我評估

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多年在資訊法律及法形成理論上的鑽研，報告人認為今後除了持續在法律爭議及理論上的辯論持續深入之外，也可以開始思考實際經由電子參與理論及實踐上的研究成果，試著將報告人這幾年的專題研究成果融入一項實驗性的網路對話平台，實際觀察理論及實踐上的課題。

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Digital Copyright Law-Making and the Future Development of E-government

A critique of digital copyright law-making based on Jean Cohen’s legal paradigm including constructive suggestions regarding theoretical and practical concerns related

to the future development of E-government

Chishing Chen* Professor College of Law

National ChengChi University

No. 64, Sec. 2, Chi-Nan Rd., Taipei, Taiwan ROC Tel: 886-2-29387522 Fax: 886-2-29390212 Email: cschen@nccu.edu.tw

*SJD, University of California, Berkeley, 1993; M.S. Computer Science, University of North Texas, 1984;Bachelor of Law, National ChengChi University, Taiwan, 1979. This research is sponsored by National Science Council of Taiwan. This paper further develops the thesis of my previous paper “The New Legal Paradigm of Jean Cohen and Its Implication for Public Online Dispute Resolution”, which I presented at the 2006 Annual Meeting of the Law and Society Association in the United States. I want to thank the Chair and Discussant, and all participants for their comments.

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Digital Copyright Law-Making and the Future Development of E-government

Abstract

Digital copyright protection issues are extremely controversial, and are highly interdisciplinary as they relate to both traditional legal scholarship and modern social political, economic, social and cultural dilemmas. This paper first provides a critical examination of the major efforts involved in digital copyright protection law-making in the United States, specifically the Digital Millennium Copyright Act (DMCA), as based on Jean Cohen’s theory of the new legal paradigm. Related theoretical and practical concerns regarding the future development of e-government are then discussed.

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Table of Contents

I. Introduction

II. Cohen’s Reflexive, Co-original and Principled Approach A. Reflexivity

B. Co-originality C. Principle

III. The DMCA and its Critique A. DMCA

B. Critique

1. Regulation of the codes

2. Representation of the Public Interest 3. Interrelatedness of the Issues

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I. Introduction

Digital copyright issues are no doubt one of the most widely experienced controversies of the modern era. The immediate conflict is between copyright owners and users of copyrighted works, digital music for examplei. However, the long-term effects of the solutions to digital copyright issues reach far beyond these two groups. Balkin (2004) believes the digital copyright conflict is one of the most urgent modern constitutional challenges, and has great social and cultural impact.

Jinsburg (1997) classifies the usage of copyrighted work into two kinds. “Consumptive use” involves simple access and use of copyrighted work, while “transformative use” involves not just access and use of copyrighted work, but also use during an authoring process to create a separate original work. The difficulty in balancing the interests of the owners and the users of copyrighted work lies mainly in how one perceives the public interest associated with copyright, such as the public right of expression, education or right to information. As we enter the internet age, such perceptions became further pluralized.

That digital copyright issues have become ever more interdisciplinary reflects the growing complexity of the conflict. Goldstein (1997) believes the copyright regime itself is at a crossroads, since electronic contracts and encryptions have essentially taken copyright issues and changed them into contractual ones. Also taken away are the interests that historically have provided necessary checks and balances within the copyright system. In addition, the low authorship and highly collaborative nature of digital copyrighted work (Ginsburg (1990), Woodmansee (1994)) turn the copyright conflict into a conflict with the constitutionally guaranteed freedom of expression. Finally, as a later section of this paper points out, the major difficulty the copyright owners are facing when they attempt to enforce digital copyright law on the net is an unfavorable balance between their rights and the users of the copyrighted works’ right to information privacy. In other words, a satisfactory solution to these digital copyright issues is bound up with the user’s right to information privacy, creating yet another challenge for the development of information law.

These interdisciplinary and interrelated legal problems by no means show the whole landscape of digital copyright protection issues. The social, economicalii, political and cultural dimensions of these issues not only inform the academic approaches to the problem, they also reflect the breadth of the impact of the issues.

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Copyleft represents a major modern social and political movement; however, ironically, as Dusollier (2003) points out, the most successful story of Copyleft, like Open Source and Creative Commons, comes out of the copyright arrangement.

Basing on the distributive value, Houweling (2005) advocates the need to look at the digital copyright protection issue from the perspective of distribution and the exercise of creativity, and suggests that the a person’s property status ought not to negatively affect her/his ability to create. A concrete solution to achieve such goals would be to allow free transformative use of copyrighted works in cases where the users intend no commercial gain. If the transformative uses do result in commercial gain, then solely the profits would be subject to copyright royalty allocation.

The academic approaches and solutions to this problem are extremely plentiful and some of the different points of view do counter each otheriii. Starting out from theories of property law, Hunter (2003) believes the power of the copyright owner ought to be curtailed; but Wagner (2003) advocates greater control by the copyright owner. Wagner emphasizes the fact that information wants to be free, and hence the copyright owner cannot completely control copyrighted work. On the other hand, granting greater control to the copyright owner over a longer period should yield creative work with greater impact. However, borrowing from the concept of anticommons, Hunter thinks greater control by the copyright owner will lead to suboptimal usage of shared internet resources because “no one will be allowed to access competitors’ cyberspace ‘assets’ without a license or other transactional expensive or impossible permission mechanism.” (Hunter (2003):502-3) All these different approaches and theses are reasonable inquiries and it seems that a different law-making environment that facilitates dialogue and debate of these ideas is truly required before a much-needed comprehensive digital copyright protection scheme (Litman (2001:171-91)) can be realized.

Besides all of this important research into the search for balance in digital copyright legislation, Balkin (2004) provides another insight favoring a fresh look at digital copyright law-making. He believes the traditional public/private classification fundamental to the constitutional democracy has gradually shifted to a social and cultural relationship where every social interaction is meaningful and important in terms of cultural production and democratic development. The ways one receives information are vital to one’s identification, which becomes the basis for the various personal exchanges that in the long run create culture. In an age where the digital environment has become the major arena for creation and interaction, technologies

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that control the flow of information also control what and how one receives

information. Therefore, digital copyright issues should be given utmost attention in the fostering of democratic culture.

This paper therefore believes that future e-government development, at least where digital copyright law-making is involved, cannot simply digitize all previous paper-based work. We really should see this as a test case in the search of a new paradigm. From a broader perspective, Lobel (2004) also finds real development in legal thought from regulation to governance where a bottom-up approach that emphasizes communication gradually replaces the traditional regulatory concept of command and control. This transformation is most evident in labor, environmental and information law.

Information law specialist Katsh (1989)iv gives an analytical explanation why the traditional system of command and control must not be used in the creation of

information laws. He uses information chains as a metaphor to describe how

knowledge creation and accumulation is reflected by the connecting and lengthening of the information chains. However, information chains not only grow longer, they are also volatile and may foster connections between branches of knowledge that were previously isolated. The dynamic nature of the context of information law, including digital copyright law, is the reason why law of state, searching for an empirical model to fit all applicable situations, will become increasingly impotent. As discussed in the following section, a legislative solution which heavily relies on a technological solution seems to be the best footnote to his observations.

This is also the reason why this paper chooses the new legal paradigm put forward by Cohen (2002) as the theoretical foundation for reexamining digital copyright law-making. As analyzed in the next section (Section II), Cohen basically emphasizes a principled solution through regulated self-regulation that requires a mutually enabling relationship between law of state and the self-regulation. In my opinion, self regulation through better public discourse is really what we need at this stage in order to create better digital copyright laws, since we must be conscious of the normative meanings which reside in the rich and dynamic context of the

information chains Katsh describes. And such self-regulation can only be enabled by law of state and be effective through state supervision. Certainly, Cohen’s model will not have a chance to be realized if the law of state is still in a command and control mode. That is why a reexamination of digital copyright law creation is so instrumental in providing the needed mirror of experience (Section III).

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II. Cohen’s Reflexive, Co-original and Principled Approach

Teuber (1983) synthesizes three social theories of lawv to form the basis of his theory of reflexive law. The three theories differ greatly, but they all take an evolutionary view of the law. The general development from laissez-faire to the welfare model means the juridification of the law and extensive legal intrusions into society and private life are ever growing. Centered on Luhman’s system theoryvi, Teubner offers a structural solution designed to overcome the problem of

juridification of our highly complex society. He emphasizes a two-level law-making scheme with greater attention given to self-regulation. Under his model, law of state is responsible primarily for ensuring procedural justice in self-regulation where the substantive norm is derived. And the reflexivity of self-regulation, or sub-system, is further guaranteed by the structural requirement of self-regulation to open itself up and be responsive to all other interests affected by self-regulation.

Cohen wants to improve the reflexive model because she thinks that it has led to deregulation or privatization in effect. She emphasizes the importance of regulated self-regulation and I believe she redirects the reflexive model by further emphasizing Habermas’s co-originality thesis and Selznick’s principled approach. I will elaborate on these three elements central to Cohen’s new legal paradigm with an eye on the purpose of the future development of e-government.

A. Reflexivity

It is a general objective of this article to point out the needed conceptual

exploration for successful e-government, in other words, e-government does not mean simply to digitize whatever exists in paper form within the government. I believe one of the issues we must pay the most attention to is the potential conflict between reflexive law and its impact upon the rights holdersvii. How the reflexive approach to the sexual harassment issue Cohen (2002) studied can be successful is due primarily to a principled judgment against the right of privacy claim of the disputed sexual harasserviii. It shows that in general there are theoretical as well as practical impacts which need be assessed and potential conflicts resolved before we can fruitfully turn an area of law reflexive. I will further elaborate on this point in the following sections in the context of digital copyright protection.

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e-rulemaking. Through the requirements of the Administrative Procedure Act (APA), there has been an established tradition in the United States to go through a notice and comment stage before the rule-making power of an administrative agency is exercised. With the enactment of the E-government Act of 2002 (EGA), Reitz believes the

comments an agency receives during the notice and comment stage will also be available to the public, though this is not expressly required by the EGA. Allowing public comments online and accessible is surely the first great step to enabling public dialogue and education, as Zavestoski (2006:405) believes: “[o]pen and discursive public involvement, which the Internet can provide if used reflexively, may hold the potential for a working out of science and value-based positions in a way absent in the current rulemaking process.”

The result of another case study by Welsh and Fulla (2005) also finds that internet interactions between private citizens and government agencies do effect structural changes inside the organizations, along with the change to the community and citizen-bureaucrat relationship. It seems that it is not only desirable to explore the impacts of e-government upon the rights holders in order to reduce its negative effects and at the same time raise its acceptability but to do so is imperative since these changes are inevitable and may have already begun.

Another reason why the reflexive approach is worth exploring has to do with its structural improvement to the traditional single-level law of state setting. Cohen (2002:162) rightly points out that the Habermas’s action theoretical model mainly has the formation of state-wide public opinion in mind and poses a formidable task of communicationix. The dual-level approach of reflexive law is compatible with the distributed processing trend that information technologies have brought about and runs parallel to the development of the legal thought in government which Lobel (2004) detects. Starting with the local public sphere empowered by the e-rulemaking of agencies and public organizations, future development of a networked state-wide public sphere is more likely to be successfully realized.

So far, administrative law-making seems to dominate this type of thought. However, I must point out that there may be an even more important e-governmental development on the side of judicial law-making. Again, I think Cohen (2002:177) is right to point out the significance of conflict resolution within the subsystemx. The courts and alternate dispute resolution (ADR) could be perceived reflexively just like administrative rule-making and self-regulation. Online dispute resolution can be designed as another public forumxi just like what the notice and comment process

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may lead to in the sphere of administrative law-making.

I believe focusing on conflict resolution is also significant for the issue of empowering the subsystems. Fuller (2001) points out the significance of social interaction for leading reasoned arguments and opinions of adjudication to the development of doctrines of law which serve as the basis of social order. Online dispute resolution as a local public sphere can serve as an important mediation tool for the social interaction much needed in contemporary society. In addition, I would think that the local public sphere also has an organizing effect. In a budding subsystem where self-regulation is desirable but no community can undertake the responsibility, forming a local public sphere and fostering participation and communication may be a significant first step to the building of such a community.

B. Co-originality

The mediation of human activities through law is central to Habermas’s (1996) discourse theory of law. An individual hence has two capacities under such a scheme. Private autonomy denotes the freedom one enjoys under the protection of the law to pursue whatever direction one pleases, while public autonomy denotes the

participating individual in the public opinion formation process leads to the making of the law. These two autonomies are co-original in the sense that the one cannot exist without the existence of the other. Furthermore, the soundness of the one depends on the effectiveness of the other. Thus, the freedom one enjoys in one’s private capacity is conditioned by the law, which is dependent upon one’s participation in the public opinion formation leading to the legislation.

Cohen (2002) realizes the co-originality thesis in her plural reflexive model by emphasizing the mutual enabling relationship between law of state and self-regulation. Based on the digital copyright case study I discuss in the next section, I believe this is an important aspect of the future development of e-government. How to empower and guide the formation of the public sphere through the notice and command process and judicial decisions is one of the research issues in need of exploration and analysis. On the other hand, whether and how the improved public dialog and participation can enhance administrative as well judicial law-making is clearly another goal worth pursuing and studying.

The problem of social facts has long been the center of criticism from the perspective of sociological jurisprudence. In a pluralistic society, the problem of

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social facts is further complicated by the different values and perspectives one may hold. That’s why legal philosophers, including Habermas, adjudge the measure of the legitimacy of the law by the participatory conditions of the people affected by the legislation. A co-original reflexive law represents a balanced view of human rights and participatory democracy. How this delicate balance can be realized in a mutually enabling relationship between law of state and the subsystems is a research agenda essential to the future development of e-government.

C. Principle

Though the responsive law of Selznick is part of the synthesis which forms Teubner’s theory of reflexive law, like Habermas’s discourse theory, it is not the main guiding component. For Teubner, the main reason to become reflexive is increased social complexity. On the other hand, the purpose and internal morality of the law are what Selznick emphasizes. Institutional capacity is another of Selznick’s criteria in deciding whether a reflexive subsystem can be given the responsibility to derive a substantive norm. In other words, one reason the law of state ought not to empower self-regulation may be that the institutional capacity of self-regulation is not

adequatexii. These concerns are what Cohen (2002:178) wants to bring into her legal paradigm in order to move reflexive law toward regulated self-regulationxiii.

I believe the legal principle in Dworkin can add significant content to Cohen’s model. For Dworkin, principle is a form of legal argument which recognizes the need of value assessment and judgment. Judicial records from the judicial law-making process are essential to yielding a principled decision since they are full of chains of precedents and each of them represents the historical development of the law and a value to be weighed and selected during the court’sdecision-making processxiv.

Value assessment also means that each decision made is not an isolated task which may lead to the runaway subsystem Cohen wants to avoid. With the

introduction of the concept of reflexive law, decision-making based upon principle does not have to make a substantive selection and interpretation when it would be arbitrary to do so. The decision-maker could express reasoned concern and empower the subsystem for further dialogue before derivation of a substantive decision.

Glendon (1991) has long worried about the impoverishment of the political discourse due to rights discourse. Whether the development of e-government based on Cohen’s model can substantively redirect the development of the discursive situation of the law is definitely worth studying.

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Finally, just like the judicial record keeping so essential for principled judicial reasoning, recording of the dialogue and process of normative derivation are also key to a principled reflexive approach. Although the internet provides a self-recorded environment, the way the process is structured and software mediation have

discursive impacts concerning the rights holders. Hence, not only the issue raised by Balkin (2004) related directly to the development of e-government, but a wide array of other legal concerns is also involved. E-government is thus never simply a technological development challenge.

III. The DMCA (Digital Millennium Copyright Act) and its Critique

The DMCA (Digital Millennium Copyright Act) is the response to a rise in the need to protect digital copyrighted works, passed after the critical decision to

commercialize the Internet in the early 1990’s in the United States of Americaxv. A National Internet Infrastructure (NII) task force was created to study the changes necessary to facilitate the transformation to the internet age. Patent Commissioner Bruce Lehman chaired the Working Group on Intellectual Property and is responsible for devising a solution to protect the interests of content providers who are extremely vulnerable in a digital environment where millions of identical copies of their works can be made and transmitted all over the world.

In addition, copyright protection that is clearly in favor of the content providers is also essential to ensure a strong incentive to load the internet with content which is critical for a successful launch of the new information super highway. After a series of studies, hearings and commentarial processes starting in 1993, Lehman and his

Working Group delivered its final report in 1995. The strategy Lehman took was basically to leave the fundamental structure of the copyright statute in tag jurisdiction and try to resolve the ambiguities involving digital copyright through interpretations favorable to the copyright owners. A series of court decisionsxvi during this period also held that any physical loading of copyrighted material into random access

memory required the authorization of the copyright owner to constitute a lawful copy. These court decisions ran parallel to the producing of the report, reflected the spirit of the time and marked the high point of copyright law extremely favorable to digital copyright owners.

Corresponding with the domestic efforts toward devising the digital copyright scheme for the Internet, the same endeavor in an international setting took place at the

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Diplomatic Conference of the World Intellectual Property Organization (WIPO) held in Genevaxvii, Switzerland, and produced two international treatises in December 1996: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. This paper focuses solely on the WIPO Copyright Treaty since the two treatises contain substantive identical provisions on issues relevant to this discussion.

The WIPO Copyright Treaty is a landmark development of digital copyright protection since it fixes the primary scheme of such protection. The parties of the treaty under contract are obligated to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures used by authors. They are also required to protect the integrity of copyright management information. The treaty defines copyright management information as the information regarding the terms and conditions of use of the work and any numbers or codes that represent such information, and when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the publicxviii.

The WIPO copyright treatise also serves as the basic framework for the DMCA. Though contrary to the expectation of Lehman and his Working Group who intended to keep copyright law in tag jurisdiction and accommodate change through

interpretation, the DMCA did effect a change of course in the development of the copyright law. As discussed in the introduction section, Goldstein (1997) described the current status of copyright law as being at the center of a crossroads that could be wholly replaced by licensing contracts aided by the anti-circumvention clause.

A. The DMCA

-- “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.xix”

A total of five titles are enacted in the DMCA, two of which are related to this discussionxx. The first is “WIPO Treaties Implementation” and the second is “Online Copyright Infringement Limitation”. The first essentially governs the implementation of the general principles of the WIPO copyright treaty against circumventions of protection measures taken by digital copyright owners. The second title concerns Internet Service Providers (ISP), another major player in the internet, who provides storage and transmission services to the users of the internet and serve as the bridges connecting Internet users and content providers. The DMCA limits the liability of

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ISPs in order to provide incentives for them to join the internet infrastructure.

The anti-circumvention clause of the DMCA was codified into the Copyright Act, Section 1201xxi. It contains three measures to secure anti-circumvention:

i) It forbids anyone from deactivating a technological protection measure that controls access to copyrighted works.

ii) It forbids trafficking in services or devices that aid anyone in violating §i.

iii) It forbids trafficking in services or devices that aid anyone in violating the control rights of the copyright owners other than access.

In order to prevent the anti-circumvention clause from overprotecting digital copyrights and obstructing the public right to access, the DMCA contains provisions of exemption for nonprofit libraries, archives and educational institutions to make a good faith determination of whether to acquire a copy of a commercially exploited copyrighted work; for law enforcement, intelligence, and other governmental activities; for identifying and analyzing those elements of the program that are necessary to achieve interoperability through reverse engineering; for activities necessary to identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works in order to advance knowledge; for preventing the access of minors to adult material on the internet;for protection of personal identification information; and for security testingxxii.

Another measure the DMCA adopted to prevent overprotection is the

authorization of the Library of Congress, upon the recommendation of the Register of Copyrights, to hold periodical reviews and determine the classes of works that are adversely affected by the non-circumvention clause in the DMCA for non-infringing use of copyrighted worksxxiii. Users of these classes of works will not be subject to the anti-circumvention clause.

As to the liability of the ISPs, one of the goals was to limit their liability, which started with the NII initiatives but was not included in the WIPO copyright treaty. In 1997, the Online Copyright Infringement Liability Limitation Act was introduced to exempt ISPs from copyright infringement as long as the ISP did not place the

infringing material online or generate, select or alter its content; did not determine the recipients; did not receive financial benefits; did not sponsor or endorse the material; and did not know the material was infringingxxiv. These provisions provided for a “safe harbor” status for ISPs.

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Telephone companies, commercial ISPs, libraries and schools insisted on the inclusion of the safe harbor provisions as a precondition to the enactment of the WIPO copyright treaty implementation legislation (Litman (2001:134-5)), but the safe harbor provision alone was not accepted by content providers. As a compromise, the final DMCA provisions on the limitations on liability relating to material onlinexxv kept the safe harbor provisions and added a procedural safeguard allowing content providers to obtain subpoenas to identify infringersxxvi. Copyright owners can apply for subpoenas from a clerk of the federal district court to require ISPs to provide sufficient information to identify suspected infringers of their copyright.

B. Critique

The full impact of the anti-circumvention clause cannot yet be determined. Part of the reason is due to the fact that the digital rights management (DRM) system has not been adopted as the industry-wide primary scheme of protection due to the question of acceptance by consumers. Bechtold (2004:347-51) also points out that an effective DRM system must be secured throughout all phases related to the use of digital content. Often time the content providers need the cooperation from other parties, like manufacturers of consumer electronic devices. Content providers need to come up with strategies to force the producers of such equipment to integrate

sufficient DRM security measures into their devices.

I want to comment on the anti-circumvention approach of the DMCA mainly from a conceptual point of view to demonstrate that the command and control model of regulation based on an objective approach like anti-circumvention is simply not working, especially in the creation of digital copyright protection laws as reviewed in this article, where the contexts surrounding actions vary widely and will have a profound impact on future cultural development. The varied contexts within the regulatory environment for digital copyright protection can be found in both the high interrelatedness of legal issues and widely held interests and the values of all the affected parties. This is the basic reasoning behind my criticism in this section. In the next section, I try to detail how digital copyright law-making can be improved by following Cohen’s model as described earlier in this paper.

1. Regulation of the codes

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regulating the computer software codesxxvii that could interfere with copyright owners’ copyright protection, which is itself another computer software code, has concluded that the DMCA cannot be a comprehensive solution. I think that the principle of anti-circumvention is hardly a legal principle because it lacks the normative reasoning accessible to the public in order to differentiate a legal usage of digital copyrighted work from an illegal one. Safeguarding digital copyright through technical measures is by no means the majority choice of digital copyright owners. On the other hand, a majority of digital copyright users are not capable of breaking the technical

protections. If the major concern of digital copyright protection solely surrounds the breaking of the software codes shielding digital content, a software industry-wide regulation may be more effective.

In addition, the complicating effect the DMCA has upon copyright law is unfortunate. In the beginning, the Intellectual Property Working Group tried to leave copyright law untouched and provide needed incentives to content providers through favorable interpretation of the copyright law. In the end, the DMCA contains fifty pages of close to thirty thousand words full of technical definitions. The purpose of offering incentives seems clear, but the real question is whether digital copyright owners obtain only a false sense of security that may never be effectively realized. Moreover, the legislative impact of anti-circumvention upon the precariously balanced interests of a century’s accumulation of copyright laws is indeed most worrisome.

There seems to be a pattern of information law-making which emphasizes a technological solution. The objective appearance of the technical approach may be one reason why it is favorable. However, the difficulty to come up with regulatory terms to adequately reflect the norm of behavior for information law may be a

fundamental dilemma hard to resolve. This may explain why scholars are calling for a paradigm shift. It also constitutes the added reason why a reflexive approach

discussed in this paper especially deserves better attention.

In 1996, the Communication Decency Act (CDA) was enacted by Congress of United States to protect minors from “indecent” or “patently offensive” information on the internet. It includes criminal penalties for someone who provides such

information knowing that minors may receive them. The CDA was invalidated by the Supreme Court in Reno v. ACLU (521 U.S. 844, 1997) for being too vague and possibly obstructing the first amendment rights of the adults. Congress then enacted the Children’s Online Protection Act (COPA) to substantially curtail the coverage and

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used a well-received community standard established in Miller v. California (413 U.S. 15, 1973) to test the “harmful to minor” standard specified in the COPA. The COPA was again invalidated by the Supreme Court in Ashcroft v. ACLU (124 S. Ct. 2783, 2004). The final legislation which passed the Supreme Court test was the Children’s Internet Protection Act (CIPA) that requires all public libraries receiving federal aid to install filtering software on computers their patrons use to access the Internet. In comparison with the digital copyright regulations that adopted the technical approach of anti-circumvention to protect copyrighted digital content discussed in this article, I believe it is especially interesting to compare the majority opinion in U.S. v. American Library Association (123 S. Ct. 2297, 2003)xxviii that favors the technological solution of adding software filters to the computers of the libraries to the minority opinions that emphasizes the need for self-regulation by the library association.

2. Representation of the Public Interest

As the development of copyright law has historically paralleled technological advancementxxix, the impact from the advent of the internet is not unprecedented. Due to the highly technical nature of the copyright law issues, Litman (1989, 2001:35-69) analyzed the two major copyright amendments in the 20th century and found that Congress did not really conduct substantive deliberation before amending the law. The role of Congress was more one of pushing for compromise acceptable to all interest groups participating in the network of negotiating conferences led by the Library of Congress and the Register of Copyright Office. The latter focused on identifying the affected interests and inviting them to the conferences.

The amendments produced through the negotiating processes raised issues on legislative intent (Nimmer (2002)) and the judicial interpretation of the text of the copyright statute. However, the biggest problem may be the exclusion of the public interest. Litman (2001:51) found the representation of the public interest lacked organization or was premature, and including the public in the process presented the most difficult task. Peter Jaszi, a law professor at the American University in

Washington, organized the Digital Future Coalition (DFC) to participate in the legislative process which led to the DMCA. But all the DFC got from the bargaining was a periodical exemption review conducted by the Register of Copyright to relieve classes of works from the non-circumvention rulexxx.

Whether Cohen’s model discussed in this paper is a better scheme for public participation is especially worth exploring in the case of digital copyright law-making.

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That we can now use the internet as a public forum for the deliberation of related legal issues adds another dimension for such consideration. Stanley and Weare (2004) report an empirical finding involving the Federal Motor Carrier Safety Administration (FMCSA) which is required to develop a long-term strategy for improving the

commercial motor vehicle and operator and carrier safety. In August 2000,

the FMCSA opened a traditional docket, announced in the Federal Register, to solicit written comments. It ran a parallel web site, the 2010 Strategy and Performance Planning, to facilitate access to the related information and two-way interactive communication.

Stanley and Weare compared the written comments in the traditional docket and the digital communication through e-mails and the web site, and found that the

character of participation was different. The respondents to the docket had much greater previous contact with the FMSCA while the topic broached on the web reflected new voices and concerns. For example, commercial drivers who never commented on the docket voiced the neglected concern of road safety, and more qualitative evidence shows the increasing input from stakeholders who typically do not discuss the commercial vehicle safety issues with the regulatory authority.

Although more studies are needed before a conclusion can be made, such exploration is indeed much needed in comparison with the DMCA legislative process.

3. Interrelatedness of the Issues

Katsh (1989) points out that the information chains on the web tend to foster connections between traditionally isolated branches of knowledge, as previously discussed. This is exactly the dilemma for the enforcement of digital copyright currently facing digital copyright owners. As stated in the previous subsection, the DMCA balances the interests of copyright owners and that of ISPs by limiting the liability of ISPs so long as they retain the status of safe harbors and at the same time granting a subpoena right to the owners to pursue infringers. However, the copyright interest of the copyright owner is not the only legal interest protected by the law. As discussed in the beginning of the article, low authorship and increased collaboration tend to blur the boundaries of the issues of copyright protection and freedom of expression. Nunziato (2005) also observes that “[p]rivate regulation of speech on the Internet has grown pervasive, and is substantially unchecked by the Constitution's protections for free speech”. The copyright protection role of the ISPs should really be considered together with the issue of freedom of expression.

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In addition, Katyal (2003) raises the issue of the privacy interest of copyright users. In RIAA v. Verizon Internet Service (Verizon, 359 US App DC 85, 2003) the court decided that in point-to-point communications where the ISP provides only the conduits for data transmission and retains no copyrighted works on its server, the ISP is not liable to provide information to identify the suspected copyright infringers. The DMCA notices the importance of a statutory limit of the liability of the ISPs. It caused a need to balance out the interests of the copyright owners and a subpoena procedure was therefore created. But in light of the discussion of this paper, ISPs can be directed to be an instrument of digital copyright self-regulation if they are progressively empowered to do so with congressional guidance and administrative supervision. The dialogue that can be initiated through this reflexive approach is valuable. Verizon seems to suggest that public participation and communication may be better than top-down command and control legislation, like the DMCA where in the end copyright owners still have to face the unexpected hurdle of enforcing their rights. Improved communications may also shed light on many other issues related to the usage of digital copyrighted works and provide valuable input to law of state development.

V. Some Thoughts on the Future of E-Government – Conclusion

We are in the nascent stages of e-government and there is a debate on the future of e-rulemaking between an optimistic view (Noveck (2004)) and a cautious view (Coglianese (2004), Shulman (2004)). In light of the discussions of this paper, it seems the critical factor is one of conceptual change that will not be easy to come by. Whether the reflexive approach Cohen and other scholars suggest can replace the traditional command and control mode of thinking to guide the development of e-government will be critical.

A reflexive approach that empowers self-regulatory bodies to derive the legal norm through participation and dialogue among the affected parties online under the guidance and supervision of state authorities is the right direction for the future development of e-government. This paper will end by detailing what this concept means for digital copyright protection.

The Copyrights Arbitration Royalty Panel (CARP) is a tribunal Congress created in 1993 to settle disputes related to copyright royalty and its distribution under the supervision of the Library of Congress and the Copyright Office. A recent conflict between webcasters and copyright owners was settled through the CARP. However,

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the decision of the CARP was highly controversial and the cost of this proceeding prevented most people from bringing their claims to the CARP. Congress is currently in the process of overhauling the CARP and its procedures, but has been unsuccessful so farxxxi.

Lemley and Reese (2005) suggest a fast and inexpensive scheme of settling digital copyright infringement claims due to the major infringement conflicts the p2p networks bring forward. They want to give the copyright owner an option either to bring the case to court or to pursue a claim in an administrative dispute resolution proceeding aided with the online submission of evidence and arguments before an administrative law judge in the Copyright Office.

In light of the discussions in this paper, it seems imperative to notice the disparity between governments managed CARP scheme for the resolution of digital copyright disputes and rich approaches to deal with the issues in the legal academic community discussed in the introductory section of this paper. The depth of the controversy is further reflected by the divided public. We therefore ought to bestow many government functions mentioned in this paper, like alternate dispute resolution or commenting process in administrative rulemaking, a new orientation. In short, e-participation should be the primary focus for e-government with first priority.

Specifically speaking, we need to study how to turn digital copyright online dispute resolution into a forum of the digital copyright law where different scholarly and public opinions can be freely engaged. The e-rulemaking process can also provide a platform on the Internet for exchanges of ideas and opinions related to the issues of a specific proposed administrative rule. Although this is not a paper about the design issues of these platforms, I believe any such platform ought to have three channels for different voices in the public. The first channel is provided for anyone who want to express yes or no for any specific proposed rule or regulation without any reason specified. The second channel is provided as a chat room for anyone wants to dialog or debate with someone else in the chat room. The third channel is provided for the exchanges of scholarly or professional opinions.

This paper does not survey the increasing literature on deliberative democracy, the internet as a public sphere or political communication, but what can be confirmed is that more studies on related issues are forthcoming. A lot of work involved in this study must also be explored further. In this paper, through analyzing the problems of digital copyright lawmaking, I simply hope to be able to demonstrate the urgent need

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to grant e-participation high priority in the future development of e-government. I also point out the fact that successful e-participation requires empowering. Cohen’s new reflexive paradigm provides the theoretical foundation and the guiding principles in that direction. I believe a network of public spheres on Internet built through

empowering local normative development which emphasizes participation and communication is foreseeable and it will indeed represent the coming of a new legal paradigm.

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i

Ginsburg (2002) believes the two extreme positions are both based on greed. The legislative extension of the period of copyright protection and the changing of the meaning of “sharing”, from sharing what one owns with others to sharing others’ belongings with everyone including oneself reflect such greed.

ii

Please see (Takeyama et al. 2005). iii

Maybe what is really needed, and probably what we are moving toward

unconsciously, is a new kind of scholarship which matches the nature of authorship trends of low authorship and high collaboration. The internet may be one of the intermediary channels by which the needed threads for reflective debate among different approaches can be provided and theoretical thought and empirical findings can be brought together. Such a picture is described by Froomkin (2003) in a different setting, where engineers reach solutions for various internet standards. This point will be further elaborated on later in this paper.

iv

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行政院國家科學委員會專題研究計畫成果報告

中華民國 96 年 09 月 25 日

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