Thesis of the Book: Copyright Onto-Epistemology Copyright in Historical Perspective The Dawn of Modern Copyright: - Social Movements: Romanticism's emphasis on individualistic emotions v the Enlightenment's focus on science and reason (prelude: the Renaissance and Reformation); - Natural/Social Science: classic strict determinism (Isaac Newton); social contract (Hobes, Locke, and Rousseau); - Industrial Revolution & Creativity's Commercial Success; Pre-Anne Gravitational Singularity: - Stationer's Copyright: the Star Chamber Decrees of 1586 and 1637, the 1643 and 1649 Ordinances, and the Licensing Act of 1662; - Censorship & Competition: the struggle from Millar to Donaldson Copyright in Historical Perspective - - - Goes Modern: • Stationers' Company the Driver made possible with new printing technology • Gutenbergian Dynamics:* from guild regulation to the Statute of Anne, Goes Global: • Bene Convention 1886 to TRIPS 1995; • Trade Proliferation: from ACTA, CPTPP, to RCEP; Goes Digital: • Info Tech: WIPO's two 1996 Internet Treaties; • US' DMCA 1998 & EU's InfoSoc Directive 2001; The W.W.H Evolution Framework • Copyright Onto-Epistemology: 1. Copyright's Knower (the Who): the Ontological intra-play between authors, publishers, and user public; 2. Copyright's Known (the What): the Epistemological process of originality test and fair use/dealing doctrine's qualification of what to be protected; 3. Copyright's Evolution (the How): how technology advances and trade proliferation construct copyright's Onto-Epistemological development framework. Copyright Ontology: The Knower ∼ Knower (the Who): the copyright Ontological intra-play between authors, publishers, and the user public surrounding the proprietary expression in: 1. Copyright vs Human Rights 2. Parody and UGC Exceptions 3. Contract Override Copyright vs Human Rights • Would author's exclusive, tech-neutral, all-embracing right of communication with criminal sanctions attached threaten user public's freedom of speech and Internet freedom?? • Key Issue: as the two together protect both ideas and expression of autonomous individuals, author & the user public's indeed have a shared ontological interdependence against the government; Parody/UGC Exceptions • The Ontological intra-play between the current authors vs user as potential future authors surrounding the "use" of the proprietary expression; • Key Issue: when the author- reader distinction has become increasingly blurred, in the digital era in particular, can reader be a future author, or is copyright the end or beginning of creative authorship? Contract Override • Copyright Ontological intra-play between the publishers and readers surrounding the proprietary individual expression's market movement; • Key Issue: as contract serves as the means to individual freedom manifested in private property, should we allow contract, as the means for individual freedom manifested in property as the ends of private rights, to override those copyright exceptions limiting private rights? Gutenbergian Ontology • Inter-dependence: author the first mover vs user the receiver for the benefit of the publisher; • Separability of the knower; Copyright Epistemology: The Known ∼ Known (the What): the Epistemological screening process of copyright originality test and fair use/dealing doctrine's qualification of ideas/knowledge to be protected; ∼ Anecdote & Nature: 1. Stationers' fight: a "perpetual common law right"? 2. CDPA 1988: Copyright is a property right which subsists ... in ... original literary, dramatic, musical or artistic works... ∼ Berne Convention: author's exclusive rights include the right of: 1. Art. 8: translation; 2. Art. 9.1: reproduction; 3. Arts. 11/11ter: public performance/recitation; 4. Art. 11bis: broadcasting; 5. Art. 12: adaptation; and 6. .Art. 9.3: audio-visualization of works... ∼ Cf. Acts Restricted by Copyright: copyright owner has the exclusive right to prevent copying, issuing to the public the copies of, performance, broadcasting, and making adaptation of the copyrighted works. What Does Copyright Not Protect: • Idea-Expression Dichotomy: copyright protection "shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such". [Art. 9.2, TRIPS Agreement] • Originality Test: from "Sweat of the Brow" to Feist • Fair Dealing/Use: four factors to be considered: nature of the work & purpose, substantiality, market effect of the dealing/use. • Three-step-Test: acting both as boundary of right holders' exclusive rights and limitation on fair use suggests the dual nature of the test. The Onto-Epistemological Integrity ∼ Onto-Epistemology: Copyright protection of the proprietary individual expression as author's epistemological knowing is indeed author's being in the form of an ontological intra- dependence with entrepreneur and reader in creation, dissemination, and use of knowledge. • Intra-dependence: authorship, entrepreneurship and readership; • In-separability of the knower from the known; • Tech & Trade: technology-driven development via trade; Copyright Onto-Epistemology ∼ Force & Mechanism: "The field of copyright and related rights has expanded enormously with the technological progress of the last several decades [new types of works, new markets, and new methods of use and dissemination] ... The purpose of the two treaties is to update and supplement the major existing WIPO treaties on copyright and related rights, primarily in order to respond to developments in technology and in the marketplace." Author-Reader Dichotomy • The Gutenbergian A-R Dichotomy between royal patrons vs low-esteem writers (once manual/slave labor) is no longer there upon the rise of the Romanticism. [Holmes' Romantic gospel: "personal reaction ... upon nature" as originality] • Participative Web: What is an author? Can reader be an author at the same time? Who is publisher? Tech & Innovation • Info Tech has done more than the advent of printing technology and the use of water power did to copyright development in classic Gutenbergian copyright era • Tech-Sanctioned TPMs: TPMS + tech-neutral "exclusive right of communication" => new "Perpetual Common Law Right":The act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work is the electronic equivalent of breaking into a locked room in order to obtain a copy of a book Trade Fragmentation • Statute of Anne "a trade regulation statute" to prevent monopoly in the book trade. • Atoms v Bits: technology serves as both support and content of int'l copyright trade. TRIPS transformed the global regime from GATT's positive rights-goods/products, the Atoms-to WTO's positive and negative rights-IPRs, the Bits- oriented framework, are we ready for the shift? • Negative Rights in rem? Concluding Remarks - Separated: Copyright was once born in the heroic Gutenbergian era establishing an onto-epistemologically independent authorship upon the rise of creativity, capitalism, and individual autonomy. - Re-United: Upon going digital, technological advances and free trade proliferation in last several decades have significantly reshaped copyright: 1) technology's role in copyright and the changing author-reader dynamics in a digital environment; and 2) the private ordering effect of TRIPS global enforcement of the negative private right. - Balanced: The rethinking of classical Newtonian strict determinism that underpinned modern authorship calls for a fundamental revisit to the nature of copyright. Copyright in proprietary individual expression as authorship's epistemological knowing is its ontological being of intra-play with readership & entrepreneurship around the creation, communication and use of ideas and knowledge. The ontoepistemological balance is categorically imperative for copyright, law, and justice.