美國1990年至2014年間數位權利管理(DRM)相關議題之分析

The paradigmatic roles of copyright and patent laws have been, respectively, to protect original authorial expressions from illicit copying and novel and nonobvious functional designs (if they have been appropriately claimed and examined by patent officials) from illicit uses. It would be convenient if copyright law could be assigned the role of protecting the expression in computer programs and patent law the role of protecting program functionality. While courts continue to try to distinguish between program expression and program functionality, this distinction has proven elusive in the decades since the U.S. Congress decided to extend copyright protection to computer programs.For more than twenty years, a series of court cases have held that copyright infringement does not occur when a second comer needs to copy some aspects of another firm’s program in order to achieve compatibility with other programs. Courts have deemed the functional requirements for achieving compatibility to be unprotectable elements of these copyrighted programs, even though more than a modicum of creativity may have imparted originality to these elements.The seeming consensus that program interfaces necessary for interoperability are unprotectable by copyright law was recently called into question by the Court of Appeals for the Federal Circuit (CAFC) in Oracle Am., Inc. v. Google Inc. At issue was whether the command structure of certain elements of the Java application program interface (API) was protectable by copyright law. The CAFC reversed a lower court ruling that this command structure was an unprotectable method of operation, or alternatively that copyright protection was unavailable under the merger doctrine. The CAFC was untroubled by the prospect that software developers might obtain both patent and copyright protection for APIs of computer programs. There was, in its view, no need to sort out functionality and expression in computer programs. Copyright could protect both as long as there was a modicum of creativity to support the claim of copyright. The Oracle decision has rekindled a decades-old debate, which many had thought had been settled in the late 1990s, about the proper scope of copyright protection for computer programs and how courts should go about analyzing claims of software copyright infringement. The U.S. Supreme Court decision not to review the Oracle decision leaves the CAFC ruling intact for the time being.This Article takes issue with the CAFC’s ruling and analysis. It aims to provide guidance about how courts should assess claims of copyright infringement in computer program cases. Part II reviews some key software copyright decisions and explains why the Second Circuit’s test for software copyright infringement is more compatible with traditional principles of copyright law than the Third Circuit’s is-there-any-other-way-to-do-it test. The Second Circuit recognized that sometimes external factors, such as the need to be compatible with other programs, constrain the design decisions of subsequent programmers, and when this happens, those constraints limit the scope of copyright protection in programs. While there is much in the Second Circuit’s ruling to praise, that court failed to heed the statutory directive in 17 U.S.C. § 102(b) that procedures, processes, systems, and methods of operation should also be filtered out before making judgments on copyright infringement claims in software cases. Part III articulates five propositions about § 102(b) that should be uncontroversial. It explains the important role that § 102(b) has played in numerous computer program cases. It goes on to discuss numerous respects in which the CAFC in Oracle misinterpreted § 102(b), as well as numerous cases in which courts have held that aspects of programs that are necessary for achieving interoperability with other programs or hardware are too functional to be protected by copyrights. Part IV explains why the merger doctrine has an important role to play in the assessment of infringement claims involving computer programs and why the CAFC erred in its interpretation of this doctrine. Courts should explicitly recognize a merger of function and expression doctrine in computer program cases. This doctrine usefully complements analysis of elements that may be unprotectable under § 102(b) as necessary incidents to the reimplementation of an unprotectable method or process.Part V considers the roles that copyright and patent law should play in protecting program innovations, with particular attention to how courts should assess claims that copyright protection should be unavailable to aspects of programs that might be eligible for patent protection. The CAFC in Oracle conflated copyright and utility patent protections for software as though it was unnecessary to even try to distinguish program expression and functionality. Part VI offers a pragmatic approach to distinguishing between program functionality and expression in copyright cases and a refinement of the Second Circuit’s test for software copyright infringement that is consistent with the overwhelming majority of software copyright cases (even if not with the CAFC’s Oracle decision) and traditional principles of copyright law. Competition and ongoing innovation will better thrive when the scope of copyright protection is relatively thin, allowing programmers to reuse functional design elements and know how that will promote the progress of science and useful arts, as the Constitution directs.

The anticircumvention regime of the Digital Millennium Copyright Act, which operates in the background of our everyday interactions with the technologies used to distribute copyrighted works, relies on a combination of digital rights management systems that restrict certain interactions and capabilities, and legal rules that impose liability for defeating these protections. Because the DMCA’s anticircumvention regime relies on a combination of complex law and porous technology that fails to reflect consumer expectations, there is good reason to believe that it is ineffectual. Rather than actively complying with the DMCA’s abstruse provisions or passively accepting the narrow range of interactions that DRM technologies typically allow, many copyright consumers seem to have a different lodestar—their own beliefs and intuitions about the kinds of interactions with copyrighted works that are desirable, appropriate, or natural. Following these intuitions, users do with works as they see fit. They may copy for personal use, to remix and criticize, to share with others, or to avoid paying a price. Should a DRM barrier stand in their way, they may very well circumvent it or they may not, but neither law nor technology seems to bear heavily on the choice. This paper argues that such intuitions or norms may play a greater role than many suspect in governing copyright consumers’ behavior; that they may undermine the efficacy of both legal and technological restraints; and that market participants and lawmakers alike would do well to take them seriously.

Clouds are on the horizon for software copyrights. The open source movement is actively trying to turn copyright into “copyleft.” Courts around the world are reshaping the first sale doctrine, notably the European Court of Justice in UsedSoft v. Oracle not to mention the United States Court of Appeals for the Ninth Circuit in Autodesk v. Vernor. Software manufacturers are fleeing from distribution models toward service models—into the cloud. A perfect storm for software copyrights is brewing. The cloud promises to enable software publishers to place their code outside both the framework of copyright exhaustion under the first sale doctrine and the “distribution trigger” in open source code license terms. Users’ inability, in the cloud context, to directly access the underlying software threatens to exert various side effects, notably affecting software interoperability. New kids on the block lose the ability to reverse engineer hosted software. Established platform providers gain the ability to prevent interoperability, based on laws prohibiting interference with computers and technical protection measures. These developments risk upsetting the delicate balance between exclusive rights for copyright owners and access privileges for the public—a balance that courts and legislatures have carefully established over the years—in order to foster creativity and innovation. With unprecedented pressure on traditional distribution models, how will copyright law cope? In our Article, we attempt to illuminate the immediate path ahead, discuss possible answers, and pose more questions. © 2015 Lothar Determann and David Nimmer. Opinions expressed herein reflect only the authors’ views, and should not be imputed to their universities, firms, clients, or others. † Lothar Determann teaches computer, internet, and data privacy law at Freie Universitat Berlin; University of California, Berkeley, School of Law; and Hastings College of the Law, San Francisco and practices technology law as a partner with Baker & McKenzie LLP, admitted in California and Germany. †† David Nimmer teaches domestic and international copyright at the UCLA School of Law and as a guest at various other institutions. He has represented a wide array of clients in copyright matters at Irell & Manella LLP. 162 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 30:1

The modern audio compression techniques and increased bandwidth in the Internet has dramatically changed the music industry. Music in the 19th century was a service. In the 20th century music became an industrial product. In the 21st century music will be a service again. Illegal sharing services like KaZaA are widely spread. Legal online music services like iTunes from Apple or Napster 2 from Roxio already have been started successfully. Using these systems PC users have access to a huge music database. In contrast to this users of home HiFi systems still miss such online services. The authors give an impression of the future HiFi system they dream of. Like a modern PC the dreamed system, which is currently under development has Internet access and operates with a hard disk. Unlike a PC the HiFi system has a simple user interface. The connection of HiFi system to a special peer-to-peer network provides easy browsing through numerous music titles. The introduced automatic mode allows the user to listen to his favorite music with a one button interaction. Technologies like audio fingerprinting and melody transcription are necessary for future HiFi systems. Some other technologies like recommendation engines and light weighted digital rights management systems are currently under development. The core component of the HiFi system is the content manager. It tries to match the user profile with other existing profiles to send song requests to the connected peer-to-peer network automatically. The described system is closely related to a European research project called semantic HiFi, which is lead by the famous music/acoustic research institute IRCAM. The sharing system is the main contribution of Fraunhofer lDMTand 4FriendsOnly.com AG.

In recent years, more and more people use Internet and with the improvements of communication technology, information sharing trends has surged over Internet. Peer-to-Peer (P2P) networks have become the main stream of file-sharing platform. However, many digital contents, which do not get permission to be copied or delivered, are privately spread by uploading to servers or P2P networks. The piracy issue seriously hurts license owners' deserved profits and potential market. For this reason, digital rights management (DRM) is considered as a general preventive measure to avoid copyright infringement. However, a conventional DRM system is only suitable for client-server architecture, and its implementation on P2P network would be quite difficult. This research plans to develop a novel traceable and fair transaction mechanism which not against the sharing purpose of P2P networks and protecting digital rights of digital contents.

This study deals with the technical approach related to the protection of digital video contents copyright, which has currently become a major issue in the digital contents market. With the production and distribution of digital video contents rapidly increasing, various policies and technical approaches are being made in relation to the protection of intellectual property rights. The technical approach from a DRM (Digital Rights Management) perspective was made from various angles, but its limitations have also been exposed in terms of convenience and quality. In this study, rather than the existing encoding certification and watermark technologies, it introduces technical approaches from a content-based copy detection method, while suggesting a copy detection method using the representative color sequence. In particular, this study takes into consideration the distribution environment of the domestic video market and deals with the technical approach in a direction that can control the illegal distribution of high quality videos.

This research uses data collected from a university campus network via Deep Packet Inspection (DPI) monitoring and from the largest public BitTorrent tracker to characterize the extent of unauthorized transfers of copyrighted content using Peer-to-Peer (P2P) and to evaluate the effectiveness and limitations of DPI in detection of such activity, both to provide a perspective of how much copyright infringement happens using P2P and to inform those seeking to deploy DPI technology. Use of P2P and transfers of copyrighted content were widespread on campus. In Spring 2008, 40% of students living on campus were detected using a P2P protocol, 70% of which were observed attempting to transfer copyrighted material. In late 2010, we estimate that over 800 million copies of content were transferred globally using BitTorrent per day, with an estimated number of transferred songs 13.1 times greater than worldwide sales of songs, and estimated number of transferred movies 6.8 times greater than worldwide box-office sales and 16.4 times greater than U.S. DVD and Blu-ray sales. Most transfers were from a small number of very popular titles that were widely available for sale. We found no evidence that use of P2P to transfer content without violating copyright was common both on campus and global BitTorrent. This indicates that copyright law is violated frequently using P2P, and while we cannot quantify how P2P transfers translate to lost sales, it is reasonable to assume some sales are lost due to P2P. Focusing on effectiveness of DPI, after a couple weeks of monitoring DPI found up to 80% of detected P2P users attempting to transfer copyrighted content. In the short term, DPI could be effective to assess which network users transfer copyrighted content using P2P given some weeks of monitoring. However, limitations such as not being able to detect users of encrypted P2P can reduce DPIʼs effectiveness in the long term. Using behavioral classifiers that we implemented and that can detect encrypted BitTorrent from traffic summaries, we found students shifting from unencrypted to encrypted BitTorrent in the 2007-2008 academic year. If this trend continues, effectiveness of DPI for enforcement can be significantly hindered

The rising popularity of streaming has resulted in a revolutionary change to how digital content, such as sound recordings, cinematographic films, and radio and television broadcasts, is used on the internet. Superseding the conventional method of downloading, using streaming to access digital content has challenged copyright law, because it is not clear whether end-user acts of streaming constitute copyright infringement. These prevailing grey areas between copyright and streaming often make end-users feel doubtful about accessing digital content through streaming. It is uncertain whether exercising the right of reproduction is appropriately suited for streaming, given the ambiguities of “embodiment” and scope of “substantial part”. Conversely, the fair dealing defence in Australia cannot be used aptly to defend end-users’ acts of streaming digital content, because the use of streaming to access digital content rarely falls within the defences specified under fair dealing. When considering a temporary copy exception, end-users are at risk of being held liable for infringement when using streaming to access a website that contains infringing digital content, even if they lack any knowledge about the content’s infringing nature. Moreover, the grey areas in circumventing geo-blocking have made end-users hesitant to access websites through streaming because it not clear whether technological protection measures apply to geoblocking. End-users have a severe lack of knowledge about whether they can use circumvention methods, such as virtual private networks, to access streaming websites without being held liable for copyright infringement. Despite the intricacies between copyright and access to digital content, the recently implemented website-blocking laws have emboldened copyright owners while suppressing end-users’ access to digital content. This is because the principles of proportionality and public interest have been given less attention when determining website-blocking injunctions. This thesis examines the challenges posed to Australian copyright law by streaming, from the end-user perspective. It argues that continuous attempts to adapt traditional copyright principles into streaming, a novel technological advancement, are futile. This thesis compares the Australian position with the European Union and United States to draw lessons from them, regarding how they have dealt with streaming and copyright. By critically examining the technological functionality of streaming and the failure of copyright enforcement against the masses, it argues for strengthening end-user rights. Although it is difficult to reach copyright equilibrium by counterpoising copyright owners’ interests with copyright users’ interests, this thesis argues that deploying an appropriate balance is pivotal to expand end-user rights. This analysis of the current copyright law regime, from the end-user standpoint in respect to novel technologies such as streaming, opens up new terrain for future research, on how copyright law should address new technologies to benefit society.

The law of Copyright Act 1957 has been giving protection to literary, dramatic or musical works, artists, cinematograph film and sound record. Now days it has been challenging even in the field of research publications, thesis and patent. In this paper the Researchers focus on the laws of copyrights and libraries, also on the challenges and issues of copyright. Some of the cases related to the copyright are also discussed. Keywords: Copyright Laws, Library, Infringement of copyright, Intellectual Property, Licenses Cite this Article Vishwasrao S Mane, Namita Khot. Copyright Act, 1957: A Study with Reference to Selected Cases in India. Journal of Advancements in Library Sciences. 2019; 6(Special Issue 1): 336s–341s.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images. A great deal has been written on the theoretical aspects of copyright and the cultural industries but much less on the applied side – how copyright law works in practice. How do lawyers, firms and artists manage and administer copyright and what economic and legal problems does this raise? In recent times in particular, technological inventions appear to have outpaced the development of copyright law. This illuminating book addresses these issues and looks at the serious implications for copyright policy in the future. Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: • law and international transactions of copyrighted material • economic analysis of copyright and freedom of expression • music licensing in the digital age • the role of copyright in stimulating cultural development • internet distribution of copyright material • the problems of licensing museum images. International in scope and offering views from both academics and practitioners, this book will interest and inform economists, lawyers and policymakers alike. Commercial managers and business analysts involved with copyright would also benefit from reading this comprehensive yet accessible book.

With the development of information and communication technologies, changes are inevitable in the field of intellectual property rights. With the progress of the technological opportunities and digitization, issues in copyright emerge along with production of digital works. In the study, generally, it is aimed at examination of digital works and digital rights management within the context of copyright. The Law No. 5846, Law On Intellectual And Artistic Works within the framework of digital rights management constitutes the scope of the study. In this context, it is aimed also at the analysis of the relevant Supreme Court decisions on the basis of their subjects. In addition, it is evaluated within the scope of WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, which are globally important legal regulations in the field of digital rights management, with content analysis. At the end of the study, on the one hand, it is concluded that there are provisions in the Law On Intellectual And Artistic Works regarding digital rights management. On the other hand, there are shortcomings in this Law concerning copyright of digital works and digital rights management, and these shortcomings are focused on economic rights.

Copyright Law and Science

There are different kinds of norms between “the author’s right system” and “the copyright system” on the protection of performers, producers of phonograms and broadcasting organizations. The author’s right system has used neighboring right to protect their performances, phonograms and broadcasting while the copyright system has used copyright mainly to protect them and also cover common-law property right, personal right, unfair competition and criminal law. Looking into the articles of the R.O.C. copyright law about the protection of performances and phonograms, it seems that we adopt the copyright approach. But, examining the contents of these articles, it is still different from other types of property rights of copyrighted works. How can we appropriately explain these limitations, exclusions or special treatments? Does it mean distinct from the copyright approach, and tend towards the neighboring right approach? Furthermore, there is no protection for the contribution of broadcasting organizations. Does it necessary to draw up some norms to protect them? Taiwan has entered into the WTO on January, 1 2002. As a member, we have to follow the WTO related conventions. Article 14 of the TRIPS has regulated the protection of performers, producers of phonograms and broadcasting organizations. The paragraph 6 of article 14 has provided:” Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention.” We are not the member of the Rome Convention in fact, but through the TRIPS, we still have to show our respect and do research on these international conventions as the basis of communication. At this moment, it is necessary to study the relevant approaches and theories of international society and major countries, and then seek to establish the justification theory and legal fundamental of our nation. Consequently, this research will adopt a comparative study method, beginning with a study of relevant international norms, focusing on the differences between the legal regimes of developed countries, including England, U.S.A., Germany, and Japan. The results of this study will be applied to examine the advantages and disadvantages of our present legislation, and to make amendment recommendations.

In the digital era, technical protection measures (TPMs) have become essential for safeguarding copyrighted content. However, their misuse has generated significant legal and normative tensions, particularly under China's Copyright Law. This paper critically examines key deficiencies in the current anti‐circumvention regime, including the absence of prohibitive provisions, the overextension of TPM protection, and the lack of corresponding obligations for rights holders. It also analyzes the judicial conflation of “direct circumvention” with the “provision of circumvention tools,” which has led to ambiguity in liability attribution and inconsistencies in case outcomes. Grounded in the principle of copyright interest balancing, this study combines doctrinal analysis with case‐based review to uncover structural and interpretive flaws in China's legal framework. It argues that circumvention behaviors should be reclassified not as copyright infringement but as violations of statutory prohibitions, and that evidentiary mechanisms should be optimized through burden‐shifting presumptions. Additionally, the paper calls for clarifying eligible parties authorized to deploy TPMs, introducing a legitimacy test for TPM purposes, and explicitly prohibiting abusive practices—such as restricting access to public domain works or bundling TPMs with unrelated products. By proposing a set of feasible legal reforms, this study aims to enhance the coherence, fairness, and enforceability of China's anti‐circumvention provisions, ultimately achieving a more balanced and rights‐sensitive digital copyright governance model.

This article argues that whether to inhibit parallel importation of copyrighted works is not an issue only concerning legal reasoning or interpretation, we should also take factors including economy, culture, society, politics and history of a country into consideration comprehensively for the best regulations. In regard of economic scale and cultural development, Taiwan is a small economy and cultural importation country, like New Zealand, Australia and Switzerland; therefore, Taiwan can take similar approach as these countries for regulation and content of parallel importation of copyrighted works. Experiences of Switzerland, Australia, New Zealand and Japan indicate their authorities of competition laws often review the reasonability and soundness of works importation limitation based on their expertise and competence from the deregulation or regulatory innovation standpoint. Taiwan's competition law authority, Fair Trade Commission, may take the same approach as their counterparts in Switzerland, Australia, New Zealand and Japan did to push forward deregulation of the overregulated parallel importation of copyrighted works in its Copyright Act.