The Historical Origin Of Copyright System & The Characteristics Of Digital Age

1. It is not allowed to transfer or give up the personal rights. Some civil law countries even do not allow the transfer of copyright; The works completed by employees in order to complete the work tasks delivered by the employer can still obtain the original copyright, and the employer can only transfer or license the copyright in them through the contract. With the major countries of the common law system joining the Berne Convention For The Protection Of Literary And Artistic Works (Hereinafter Referred To As The Berne  Convention) and the mutual reference and integration between the legal systems, the conceptual difference between “author right” and “copyright” is narrowing day by day. Since China’s laws are mainly “borrowed” from Japan, Japan accepts the German legal system, while Germany is a typical Civil Law Country. The “author’s right” and “copyright” stipulated in China’s author right law are the same concepts. In the narration of this book, the concept of “author’s right” is used according to the understanding of China’s copyright law.

 

1.1. The Germination Of Copyright System

In ancient West Asia, Hebrew private and religious laws required the oral narrator to identify himself. In Rome in the 3rd century BC, writing became a serious career for the bourgeoisie, and the poet martial complained that his works were read without authorization. In the Middle Ages (476-1453), Roman bishops monopolized knowledge through the monastery system, and the monastery formulated a series of rules governing the transcription and exchange of book manuscripts. Manuscripts can be exchanged for land, cattle, sheep, money and other privileges. Any pirate must pay the same money as other publishers to buy and maintain the capital used for infringement. These requirements and regulations in ancient times are the embodiment of the embryonic state of the copyright system before it came into being.

 

1.2. The Foundation Of Copyright System

In the Renaissance of modern European history (1450-1640), Johannes Gutenberg printed the Bible with a “Lead Movable Type Mechanical Printer” in 1455, and the Republic of Venice granted the printer Johann Speyer a five-year license to print books in 1469; In 1504, Henry VII appointed William Faques as the Royal printer and granted him the exclusive right to print public notices, statutory laws and other documents issued by the royal family. Around 1565, the concept of “copyright”in English, the right of copy printing – degenerated from the monopoly of exclusive printing rights. In 1570, the printing concession went deep into a wide range of fields, including primary textbooks, prayer books, school books, service books, calendars, prophecy books, Bibles, introductory textbooks, hymn manuals and so on. The royal family made a deal with publishers to monopolize book publishing. Publishers also helped the royal family enforce the ban against unauthorized printing. Although these prohibitions were quickly broken through, the licensing printing procedures and rules formulated by publishers had a far-reaching impact. The book printing registration system is one of them. Its main content is that if books need to be printed and distributed, they should be reviewed by the department authorized by the royal family and registered after obtaining permission. After the modern history of Europe entered the bourgeois Enlightenment Period (1640-1750), the British commons issued an order in 1642, requiring that books appearing after 1632 must be printed with the author’s name and a description of his consent, indicating that the author is the last responsible person of the book. These events and acts have laid a solid practical foundation for the emergence of the legal system of copyright,

In 1667, John Milton’s paradise lost was published. Through the transaction between the author and the publishing house, the author was given remuneration, liberated from the sponsorship system, and gradually formed the theory of “possessive individualism”. Locke’s “On Government” was published in 1690. The fifth chapter of the second volume of the book expounds the property right theory of natural law and puts forward the proposition of labor as the source of property. Sanders explained this claim: “Locke’s principle of property rights provides the basis of a natural right for the principle of copyright, which justifies the author or the printing and seller authorized to publish the work  as the legal owner of the property in the work.” In addition, Locke lobbied against the extension of the bookseller Company License Law, and in his 1692 letter, he regarded the “Arrogant And Lazy Bookseller Company” which monopolized publishing rights as a capital holder without production capacity. In 1694, the monopoly of the bookseller company was abolished. These theories provide a legitimate and reasonable basis for the emergence of copyright legal system.

 

1.3. The Emergence Of Copyright System

In 1710, the British bookseller company lobbied the parliament to enact and implement “The Queen Anna Act”,which safeguarded the interests of the bookseller company, but also gave the author the exclusive right to reprint, publish and sell his works, so that the copyright is no longer exclusive to the members of the bookseller company, because anyone related to the publication, whether the author or the publisher, will obtain the copyright of the works as long as his works are registered, And from the main protection of print publishers to the main protection of authors. The law is regarded as the first modern copyright law, a symbol of copyright modernization, and has epoch-making significance in the history of copyright development.

In the case of Millar V Taylor in 1769, the British court determined the author’s common law copyright according to Locke’s principles of natural law; In the case of Donaldson v. Becket in 1774, the Court confirmed the copyright protection period under The Queen Anna Act through case law.

In addition, The United States enacted the first copyright law in 1790; In 1791, 1792 and 1793, France promulgated relevant copyright regulations respectively.

The formulation of these laws marks the emergence of the legal system of copyright.

 

2. Development Of Copyright System

In the 18th century, German Book piracy was rampant. Kant’s article injustice of forging books attacked piracy. In 1797, Kant distinguished two characteristics of a book in his book The Metaphysical Principles Of Law: first, as a “handicraft” that can be imitated; Second, as a publisher entrusted by the author, he becomes the only publisher qualified to open dialogue with the public. This lays a certain foundation for the author’s theory of personality rights. In the mid-19th century, France formed an author centered copyright theory. Previously, courts often needed to try to strike a balance between the interests of copyright owners and the needs of users. The French copyright law gives the author the right to control the first edition and integrity of the work, and the author’s spiritual right is an organic part of it. Therefore, Martha Woodmansee believes that the author in the modern sense is a relatively recent concept, which is caused by the emergence of emerging individual groups in the 18th century. The author sells his works to the expanding public readers, thus obtaining a new way of life and getting rid of the shackles of the sponsorship system. When they found that there was no law to protect themselves, they began to redefine the nature of works. They no longer think that creation comes from Zeus or God, “inspiration comes not from the outside or the top, but from the author himself. From the perspective of genius’s originality, ‘inspiration’ is external. Therefore, inspired works are the products and property made by the writer in the dimensions of time and difference”. The establishment of these scholars’ theories provides a legitimate basis for the further development of the copyright legal system.

 

2.1. Development Of Copyright System In The United States

In 1790, the United States promulgated the first copyright law, which only protects the copyright of American citizens but not foreign copyright. It was not until the international copyright act was enacted in 1891 that the United States began to provide conditional copyright protection for several foreign nationals through bilateral treaties. In particular, it stipulated that the works of the signatory countries must be printed in the United States in order to be protected by American copyright, and this provision was not abolished in the new copyright law until 1976.

With the development and development of American cultural publishing industry, international copyright protection is becoming more and more important for the export of American copyright products. Therefore, the United States advocated the conclusion of the 1952 edition of The World Copyright Convention.

In 1988, the United States amended the copyright law of 1976, no longer stipulated that works must be registered for copyright protection, and increased the number of years of copyright protection. At the same time, the Comprehensive Trade And Competition Act 1988 systematically defines property rights. Protection issues are included in the “article 301” system. On the basis of the original “article 301”, section 1303 is added with the title “determining the countries that refuse to provide adequate and effective protection of intellectual property rights”. Therefore, this article is called “special article 301”. The core of the “Special 301 clause” is that the United States uses economic sanctions as a weapon to force other countries to improve copyright protection standards to meet the requirements of the United States, and allows American copyrighted products to enter the domestic market of the country.

In 1989, the United States acceded to the Berne Convention. In October 1998, the United States passed the Digital Millennium Copyright Act, which provides comprehensive digital copyright protection for the American copyright industry according to the characteristics of digital technology and network environment. The meaning of author right is copyright, that is, the right to copy. This is because printing was not popularized in the past. At that time, the society thought that the most important right attached to the crop was the right to print and publish it. However, with the evolution of the times and the progress of science and technology, the types of works gradually increase.

 

2.2.  International Development Of Copyright System

The Berne Convention was concluded in 1886. The original signatories were Britain, France, Germany, Italy, Switzerland, Belgium, Spain, Liberia, Haiti and Tunisia. The signatories exchanged instruments of ratification on September 5, 1887 (only Liberia did not ratify it), The Convention came into force three months later (the United States also sent representatives to attend the 1886 conference, but because the publishing industry of the United States was far less developed than that of Britain, France and other European countries at that time, participating in the convention was disadvantageous to the United States. Therefore, the representative of the United States refused to sign the Convention on the pretext that many provisions of the treaty were inconsistent with the United States copyright law and could not be approved by the United States Congress. He did not join the Berne Union until March 1, 1989 and became the 80th member state). When revising the Convention in 1971, due to the strong request of developing countries, the Convention added an annex on special provisions for developing countries, which stipulates that for the needs of education and scientific research, developing countries can issue compulsory licenses for the translation or reproduction of copyrighted works within the limits specified in the Convention and in accordance with the procedures specified in the Convention. On October 15, 1992, China became a member of the Convention. The total number of parties to the convention now stands at 168.

In addition, the United States took advantage of the Uruguay Round of GATT negotiations to actively promote the establishment of a new international copyright protection system related to international trade. Through the “package” negotiation, the agreement on trade related aspects of intellectual property rights (TRIPS Agreement) was finally formed, forcing developing countries to make concessions on copyright related matters.

 

2.3. The Development of Copyright System in China

Since the early copyright law was to protect printing and publishing, this period is called “The Era Of Printing Copyright”. The scope of this protection is constantly expanding with the progress of science and technology, from written works to artistic works, and from artistic works to music, drama, photography and other works. Therefore, the term copyright can no longer include all rights related to copyright. In the second half of the 19th century, Japan formulated the “Japanese copyright law” by integrating the author’s right in the copyright law of the civil law system and the copyright in the common law system. China’s laws are mainly “borrowed” from Japan, and the formulation of copyright law is no exception.

The earliest use of the word “copyright” in Chinese began with the Qing Dynasty author right law formulated by China “drawing lessons from” the Japanese copyright law “, which is China’s first law on copyright. The Qing government explained that: if there is a law called author right law instead of copyright law, the copyright is more than license, and the protected person is publishing, not including the creator of the publication; It also refers to books and pictures, rather than carving models and other art objects, so it is appropriate to use the name of copyright. Since then, this title has been used in China’s copyright law. Nowadays, the term copyright is still commonly used in Chinese society, but the term author right is no longer used in the formal titles of copyright related rights in the mainland and Taiwan. Within the territory of China, all works of Chinese citizens, legal persons or entities without legal personality, whether published or not, enjoy copyright; Foreigners whose works were first published in China also enjoy copyright under the author right law; Works published by foreigners outside China enjoy copyright in accordance with agreements signed between their country and China or international treaties to which they are parties.

The continuous expansion of the scope of copyright protection from the date of its emergence shows that the continuous improvement of its protection level. At the end of the 19th century and the beginning of the 20th century, the development of electronic technology promoted the leap of copyright from printing copyright to electronic copyright. Electronic technology has not only brought revolutionary changes to the dissemination and storage of information, but also brought unprecedented impact and challenge to the copyright legal system closely related to information resources. The development of electronic technology has given birth to digital technology. Digital technology not only has a profound impact on human production, life, politics, economy, law, culture and other aspects, but also makes the reproduction and dissemination of works extremely easy and simple. It also makes the dissemination of information interactive and the role of authors and users blurred.

Since the 1990s, digital technology has developed into the network era. The particularity of network technology not only affects the protection of digital works, but also impacts on traditional works. In the network environment, many problems such as the copyright owner’s network communication right, the identification of the author’s identity, legal liability, the identification of the place of infringement and the right of reproduction pose a challenge to the relevant provisions of the traditional copyright law. Of course, although the legal system of copyright has been impacted by unprecedented network technology, its basic principles and elements, that is, the balance between the interests of obligees and the interests of the public, as well as various constituent elements of copyright, can still be applied. At present, our task is: through the historical development of copyright and the needs of the times, timely supplement and amend the relevant legal system of copyright law according to these basic principles, and provide a theoretical and practical basis for the application of copyright related legal system in digital library. This is the main purpose of reviewing the historical clues of the emergence and development of copyright legal system.

 

3. Characteristics Of Copyright Legal SystemIn The Network Era

The network environment has changed the way people obtain and disseminate works. People can browse and read the information they need from the network easily and conveniently. Although this reduces the cost of people’s access to information, it also provides a convenient door for infringing others’ copyright. In the production and transmission of a large amount of information, some input information that does not belong to their own proprietary information into the network, which directly or indirectly infringes on the interests of others and even the country. Others download or use network information commercially without the permission of the obligee. For example, six writers such as Wang Meng sued Beijing Century Internet Corporation (hereinafter referred to as “Beijing Online”) for infringement and seven professors such as Zheng Chengsi jointly sued “scholar company”. These cases have a wide impact in China. It illustrates the impact of the traditional legal concept and system of copyright in the network era, and also shows that the legal system of copyright in the network environment presents new characteristics.

 

3.1. Expansion Of The Main Scope Of Works

In the traditional copyright law, the subject of copyright is mainly natural persons, and legal persons can form the subject of copyright only under the following circumstances: a film works; b. work for the post; c. Commissioned works; d. Successor works.

However, the development of network technology has changed this situation. On the one hand, more and more legal persons have become copyright owners. Digital technology has produced a series of digital works, such as computer software, database, multimedia and so on. These new works need the cooperation of many people. However, it is not a cooperative work in the sense of copyright, because the cooperative work is a work jointly created by the collaborators. Therefore, people learn from the legislative experience of “film works” and award the copyright of these works to legal entities such as software development companies and multimedia production companies. On the other hand, investors will become an important subject of copyright related rights. The traditional neighboring right system also attaches importance to the protection of investors, such as the protection of the rights and interests of recording producers and broadcast organizers. In the information age, according to the provisions of The Agreement On Trade Related Aspects Of Intellectual Property Rights (TRIPS) and The Copyright Treaty Of The World Intellectual Property Organization (WCT), copyright protection is given to original data in the process of collation and arrangement. In addition, the EU Database Protection Directive gives special rights protection to all investors in database multimedia development. It can be seen that protecting the interests of investors will become an important content of copyright law.

 

3.2. It Is More Difficult To Identify The Author

In traditional copyright, the work is closely connected with its carrier, and it is not easy to modify the signature on the work. Even if it is modified, it may leave traces of changes. However, in the era of digital network, it is easy to modify the signature on the document because it is easy to form a separation between the work and its carrier. For example,  District Court Of Haidian Beijing China heard such a case: the plaintiff Chen published the article “Joking Maya” on his personal home page under his pseudonym “Wufang”, and Chengdu computer business daily downloaded and published the article without permission. Chen appealed to the court to stop the infringement and compensate for economic losses. In court, the defendant raised the defense of “how can you prove that you are ‘Wufang'” and “why can you say that you are the author of the article ‘” Wufang “. As it is necessary to fill in the registration form to apply for the personal home page according to the relevant regulations, the registered person will get the password of the personal home page registration number. Therefore, the court conducted an on-site inspection, in which the plaintiff knew his personal home page password and could modify the password, as well as upload and delete files. Therefore, the court held that “Wufang” was the plaintiff. Without the help of these technical measures such as password and registration number, it is conceivable that it is difficult to confirm the real author of the work in the network environment.

 

3.3. Expansion Of The Scope Of Copyright Object

Traditional copyright law protects literary, artistic and scientific works as its object. Although the forms of works are diverse, they are inseparable from the carrier of works. Except for oral works, other works can be protected by copyright law only if the material form is their carrier. Many member states of the Berne Convention regard fixation as a condition of copyright protection. In the digital network, digital technology can digitize all works and convert the information of works into binary digital coding composed of “0” and “1” for computerized reading, processing and dissemination. The difference between these digital works and traditional works is difficult to classify, and they cannot be used without the help of computers. Digital technology can separate the tangible carrier from the object. The carrier of digital works is usually disk, optical disc, etc. it is impossible for people to understand some contents of works through image characteristics, such as computer software, digital library, multimedia and other works.

 

4. New Changes In The Characteristics Of Copyright

The traditional copyright has the characteristics of originality and regionality, but in the digital age, these characteristics gradually appear new changes. And formed some new characteristics and changes.

 

4.1. Copyright Shows The Characteristics Of Industrialization And Practicability

Due to the development of information technology, there is a cross phenomenon between the field of culture and the field of industry and commerce. In addition to the copyright of industrial design, it is also closely related to industrial design. Now, most countries in the world protect computer software as written works, such as Trips and WCT. In the traditional copyright works, the technical nature and industrial characteristics are injected. It seems very difficult for some works to be included in the scope of copyright protection or patent protection.

 

4.2. New Changes In The Originality Of Copyright (the protection of investors will become an important part of the copyright law)

According to the relevant provisions of the traditional copyright law, works must be original, that is, original. New works similar to the original works are protected by the copyright law as long as they are original. However, the copyright of film works belongs to the producer with huge investment, not the original author. In the digital age, software development, database and multimedia production will become huge industries. The development of these industries is inseparable from the huge investment of investors and undertaking corresponding high risks. The copyright law will also pay more attention to the protection of software companies and database production companies, rather than directly protect specific design developers. For example, the legal person works of software companies and database production companies are given, and their copyright is given according to the requirements and conditions of legal person works, so as to bring huge economic investors into the protection of copyright and the creation of works.

 

4.3. Enhance The Regional And International Characteristics Of Copyright

In the era of digital network, digital works have the advantages of rapid propagation, large capacity and zero distance. As long as anyone has an online computer, he can browse and read on the Internet anytime and anywhere, without being restricted by region. And can quickly get the works they need on the Internet, which is no longer limited by the fact that a work can only be read by one person in a certain period and range. Therefore, the regional characteristics of traditional copyright law are no longer suitable for the copyright protection of network works. Therefore, some regional and international organizations began to seek new ways to coordinate the contradiction between the no border nature of digital works and the regional nature of intellectual property rights in the network era, and have been committed to global copyright protection.

It can be seen that some new features of the copyright legal system in the digital age are inseparable from the digitization of works. Digitization brings convenience to the creation, processing, preservation and dissemination of works, and also makes new problems emerge in endlessly, as well as more and more copyright disputes related to the Internet. This requires us to understand and analyze the technical background and characteristics, as well as the situation and trend of technological progress when studying the relevant issues of the copyright legal system. Only in this way can we better solve some theoretical and practical problems.