Locke,Intellectual Property Rights,and the Information Commons

This paper examines the question whether, and to what extent, John Locke’s classic theory of property can be applied to the current debate involving intellectual property rights (IPRs) and the information commons. Organized into four main sections, Section 1 includes a brief exposition of Locke’s arguments for the just appropriation of physical objects and tangible property. In Section 2, I consider some challenges involved in extending Locke’s labor theory of property to the debate about IPRs and digital information. In Section 3, it is argued that even if the labor analogy breaks down, we should not necessarily infer that Locke’s theory has no relevance for the contemporary debate involving IPRs and the information commons. Alternatively, I argue that much of what Locke has to say about the kinds of considerations that ought to be accorded to the physical commons when appropriating objects from it – especially his proviso requiring that “enough and as good” be left for others – can also be applied to appropriations involving the information commons. Based on my reading of Locke’s proviso, I further argue that Locke would presume in favor of the information commons when competing interests (involving the rights of individual appropriators and the preservation of the commons) are at stake. In this sense, I believe that Locke offers us an adjudicative principle for evaluating the claims advanced by rival interests in the contemporary debate about IPRs and the information commons. In Section 4, I apply Locke’s proviso in my analysis of two recent copyright laws: the Copyright Term Extension Act (CTEA), and the Digital Millennium Copyright Act (DMCA). I then argue that both laws violate the spirit of Locke’s proviso because they unfairly restrict the access that ordinary individuals have previously had to resources that comprise the information commons. Noting that Locke would not altogether reject copyright protection for IPRs, I conclude that Locke’s classic property theory provides a useful mechanism for adjudicating between claims about how best to ensure that individuals will be able to continue to access information in digitized form, while at the same time also allowing for that information to enjoy some form of legal protection.     

The Internet, children, and privacy: the case against parental monitoring

It has been recommended that parents should monitor their children’s Internet use, including what sites their children visit, what messages they receive, and what they post. In this paper, I claim that parents ought not to follow this advice, because to do so would violate children’s right to privacy over their on-line information exchanges. In defense of this claim, I argue that children have a right to privacy from their parents, because such a right respects their current capacities and fosters their future capacities for autonomy and relationships.     

Better educated children,better Internet-connected elderly parents

Despite its potential benefits, Internet adoption among older adults has long lagged behind that of younger age groups. This paper examines how adult children’s education affects elderly parents’ Internet use. We exploit the arguably exogenous variation in children’s years of schooling induced by the enforcement of the compulsory education law around 1986 in China. Using a sample of rural older adults from the China Family Panel Studies, we find that one additional year of children’s education increases the probability of parents’ Internet use by 3.4 percentage points. The increase is driven by Internet use via mobile devices rather than computers. Parents with better-educated children are more likely to use the Internet for study, social, and entertainment activities. The subsample analysis shows stronger effects of daughters’ education, and the estimated effects of children’s education are larger for fathers or parents with relatively more education. We also provide suggestive evidence that better cognitive health might help explain the effects of children’s education.     

Digital Images for the Information Professional,by Melissa M. Terras. Burlington,VT: Ashgate, 2008. 245 pp. $114.95 cloth. ISBN 978-0-7546-4860-4 (cloth)

Privacy has largely been equated with every individual's right to privacy. Accordingly, current efforts to protect privacy on the Internet have sought anonymity by breaking, where possible, links with personally identifiable information (PII)—all uses of aggregated data stripped of PII are considered legitimate. This article argues that we need to use a broader concept, general or group identifying information (GII), because even aggregated data stripped of PII violate privacy at the community level. The search engine companies, or anyone else with access to their log files, can use these data to generate a moment-by-moment view of what is on the collective mind. Such a view can be used in a variety of ways, some with deep economic and even political impact. In order to frame this discussion, it is necessary to examine some of the realities of the search engine-mediated associative interface to the World Wide Web. While this interface has enormous benefits for the networked world, it also fundamentally changes a number of issues underlying various current debates about Internet governance.     

Studying the amateur artist: A perspective on disguising data collected in human subjects research on the Internet

In the mid-1990s, the Internet rapidly changedfrom a venue used by a small number ofscientists to a popular phenomena affecting allaspects of life in industrialized nations. Scholars from diverse disciplines have taken aninterest in trying to understand the Internetand Internet users. However, as a variety ofresearchers have noted, guidelines for ethicalresearch on human subjects written before theInternet's growth can be difficult to extend toresearch on Internet users.In this paper, I focus on one ethicalissue: whether and to what extent to disguisematerial collected online in publishedaccounts. While some people argue thatvulnerable human subjects must always be madeanonymous in publications for their ownprotection, others argue that Internet usersdeserve credit for their creative andintellectual work. Still others argue thatmuch material available online should betreated as ``published.' To attempt to resolvethese issues, I first review my own experiencesof disguising material in research accountsfrom 1992 to 2002. Some of the thorniestissues emerge at the boundaries betweenresearch disciplines. Furthermore, manyhumanities disciplines have not historicallyviewed what they do as human subjects research. Next, I explore what it means to do humansubjects research in the humanities. Inspiredby issues raised by colleagues in thehumanities, I argue that the traditional notionof a ``human subject' does not adequatelycharacterize Internet users. A useful alternatemental model is proposed: Internet users areamateur artists. The Internet can be seen as aplayground for amateur artists creatingsemi-published work. I argue that thisapproach helps make some ethical dilemmaseasier to reason about, because it highlightskey novel aspects of the situation,particularly with regard to disguisingmaterial. Finally, I conclude by proposing aset of practical guidelines regardingdisguising material gathered on the Internet inpublished accounts, on a continuum from nodisguise, light disguise, moderate disguise, toheavy disguise.     

网络环境下知识产权的法律保护与技术保护

网络化的发展,推进了人类信息化进程,但网络也给知识产权的保护带来了难题。本文通过技术方法和法律方法对网络上知识产权的保护提出了一些看法。     

Ethics for the New Surveillance

The Principles of Fair Information Practice are almost three decades old and need to be broadened to take account of new technologies for collecting personal information such as drug testing, video cameras, electronic location monitoring, and the Internet. I argue that the ethics of a surveillance activity must be judged according to the means, the context and conditions of data collection, and the uses/goals, and suggest 29 questions related to this. The more one can answer these questions in a way that affirms the underlying principle (or a condition supportive of it), the more ethical the use of a tactic is likely to be. Four conditions are identified that, when breached, are likely to violate an individual's reasonable expectation of privacy. Respect for the dignity of the person is a central factor and emphasis is put on the avoidance of harm, validity, trust, notice, and permission when crossing personal borders.     

专利商业化激励:理论、模式与政策分析

对专利商业化激励,奖励理论认为应加强对发明创造的直接激励,前景理论强调后期商业化激励的持续性,由此形成了两种不同的激励模式。本文以ODA法案及相关政策为研究对象,分析了商业化激励政策的演变,得到如下结论:注重商业化市场保护的"市场权"与注重技术创新保护的"专利权",共同构成了紧密衔接和相互支持的激励框架,较好解决了市场失灵导致的商业化激励不足。同时,要增进专利商业化的激励绩效,还应重视中小企业的作用,实现"推动"与"拉动"之间、专利生产与商业化之间的动态均衡。     

Who Searches the Searchers? Community Privacy in the Age of Monolithic Search Engines

Privacy has largely been equated with every individual's right to privacy. Accordingly, current efforts to protect privacy on the Internet have sought anonymity by breaking, where possible, links with personally identifiable information (PII)—all uses of aggregated data stripped of PII are considered legitimate. This article argues that we need to use a broader concept, general or group identifying information (GII), because even aggregated data stripped of PII violate privacy at the community level. The search engine companies, or anyone else with access to their log files, can use these data to generate a moment-by-moment view of what is on the collective mind. Such a view can be used in a variety of ways, some with deep economic and even political impact. In order to frame this discussion, it is necessary to examine some of the realities of the search engine-mediated associative interface to the World Wide Web. While this interface has enormous benefits for the networked world, it also fundamentally changes a number of issues underlying various current debates about Internet governance.     

Shackling the digital economy means less for everyone: the impact on the music industry

Birgitte Andersen is Professor of the Economics and Management of Innovation in the School of Business, Economics and Informatics at Birkbeck College, University of London. She works on business innovation and technology policy, services dynamics and productivity, and the economics and management of intellectual property rights. She is a keen advocate of less exclusive intellectual property rights, and a smoother functioning of the market for intellectual property.

This proposition paper debates the policy measures designed to curb P2P file sharing on the Internet. In doing this, the paper challenges the Digital Economy Act, which passed through the UK Parliament on 8 April, and entered into force on 12 June 2010.     

浅议主刑与附加刑的适用规律

本文旨在严格解读刑法条文的基础上,探讨和厘清我国刑罚体系中主刑与附加刑的适用原则与规律,以对我国刑罚体系的进一步完善有所裨益。     

There and back again: Revisiting Vannevar Bush,the linear model,and the freedom of science

Despite its age, Vannevar Bushs Science: The Endless Frontier has remained a touchstone for science funding policy discussions. More specifically, many claim that Bush ushered in a new ‘social contract’ that allowed scientists to freely choose projects in accordance with their own interests while promising deliverables for the society that funds scientific institutions. Despite the prominence of The Endless Frontier, there are countless interpretations of its argumentative structure. Building off others, I develop an interpretation of how the linear model relates to the freedom of science in SEF. I critically assess this view and argue that it provides a valuable starting point for a social contract for the 21st century. To accomplish this, I clarify Bush's stance on the linear model and show that it bypasses the most common objections against its plausibility, consider the relationship between Bush's conception of the freedom of science and the rise of citizen science, and articulate a more nuanced approach to government intervention in research priority setting.     

E-mail, terrorism, and the right to privacy

This paper discusses privacy and the monitoring of e-mail in the context of the international nature of the modern world. Its three main aims are: (1) to highlight the problems involved in discussing an essentially philosophical question within a legal framework, and thus to show that providing purely legal answers to an ethical question is an inadequate approach to the problem of privacy on the Internet; (2) to discuss and define what privacy in the medium of the Internet actually is; and (3) to apply a globally acceptable ethical approach of international human rights to the problem of privacy on the Internet, and thus to answer the question of what is and is not morally permissible in this area, especially in light of recent heightened concerns about terrorist activities. It concludes that the monitoring of e-mail is, at least in the vast majority of cases, an unjustified infringement of the right to privacy, even if this monitoring is only aimed at preventing the commission of acts of terrorism.     

Artificial agents among us: Should we recognize them as agents proper?

In this paper, I discuss whether in a society where the use of artificial agents is pervasive, these agents should be recognized as having rights like those we accord to group agents. This kind of recognition I understand to be at once social and legal, and I argue that in order for an artificial agent to be so recognized, it will need to meet the same basic conditions in light of which group agents are granted such recognition. I then explore the implications of granting recognition in this manner. The thesis I will be defending is that artificial agents that do meet the conditions of agency in light of which we ascribe rights to group agents should thereby be recognized as having similar rights. The reason for bringing group agents into the picture is that, like artificial agents, they are not self-evidently agents of the sort to which we would naturally ascribe rights, or at least that is what the historical record suggests if we look, for example, at what it took for corporations to gain legal status in the law as group agents entitled to rights and, consequently, as entities subject to responsibilities. This is an example of agency ascribed to a nonhuman agent, and just as a group agent can be described as nonhuman, so can an artificial agent. Therefore, if these two kinds of nonhuman agents can be shown to be sufficiently similar in relevant ways, the agency ascribed to one can also be ascribed to the other—this despite the fact that neither is human, a major impediment when it comes to recognizing an entity as an agent proper, and hence as a bearer of rights.     

公诉程序的滥用及规制探讨

公诉程序滥用指公诉机关及其工作人员在公诉过程中,违反法律规定的正当程序,错误地或有害地行使公诉权力并作出一定的决定,推动、阻碍或终止诉讼的行为。公诉程序滥用主要表现：起诉程序的滥用、公诉变更程序的滥用、不起诉程序的滥用等。为实现司法公正、保障被追诉人权利、提高诉讼效率和节约司法资源,提出完善公诉审查制度、确定合理的公诉标准、确立滥用不起诉程序的救济制度等。     

Objections to Ostritsch’s argument in “The amoralist challenge to gaming and the gamer’s moral obligation”

This paper raises three objections to the argument presented by Ostritsch in The amoralist challenge to gaming and the gamer’s moral obligation, in which the amoralist’s mantra “it’s just a game” is viewed as an illegitimate rebuttal of all moral objections to (typically violent) video games. The first objection focuses on Ostritsch’s ‘strong sense’ of player enjoyment, which I argue is too crude, given the moral work it is meant to be doing. Next, I question the legitimacy of Ostritsch’s claim that certain video games are immoral. I examine what is involved in making this claim and what would be required for a normative position to be established: none of which is addressed by Ostritsch. Finally, I challenge the legitimacy of his claim that players are obliged not to play certain video games in certain ways (i.e., games endorsing immorality as ‘fun games’). I distinguish between immoral and suberogatory actions, arguing that the latter is in fact more applicable to cases Ostritsch has in mind, and that one is not obliged not to engage in these actions.     

Privacy Rights and Protection: Foreign Values in Modern Thai Context

The concept of privacy as a basic human right which has to be protected by law is a recently adopted concept in Thailand, as the protection of human rights was only legally recognized by the National Human Rights Act in 1999. Moreover, along with other drafted legislation on computer crime, the law on privacy protection has not yet been enacted. The political reform and the influences of globalization have speeded up the process of westernization of the urban, educated middle-class professionals. However, the strength of traditional Thai culture means that a mass awareness of the concept of privacy rights remains scarce. This paper explicates the Thai cultural perspective on privacy and discusses the influence of Buddhism on privacy rights, including the impacts of globalization and the influence of Western values on the country’s political and legal developments. The paper also discusses the legal provisions regarding privacy protection, and the debates on the smart ID cards policy and SIM cards registration for national security.     

论《矿产资源法》制度重构的模式选择与具体路向

《矿产资源法》在立法理念、框架体系和核心制度上存在的问题给我国矿产资源开发利用和保护的法治化造成了阻碍。在法律模式上,修订后的《矿法》应当是一部能够兼容公共利益和私权利,兼具民法和行政法属性的完整性法律。厘清包含在矿产资源开发利用中三组法理关系,即所有权与用益物权关系、利益分享关系、资源开发与资源安全和环境保护关系,是《矿产资源法》修改的前提。矿业权、矿产资源税费、矿产资源规划、矿产资源储量、矿山环境保护和法律责任等方面是《矿法》修改的重心。     

现代产权制度与国有企业产权的法律界定

自法人财产权的概念在我国提出以来,很多学者都进行了探讨,但由于传统民法理论的局限性,使得在立法上和理论分析上都陷入了困境。本文尝试用经济法学理论和法律经济学理论来剖析现代产权制度下的法人财产权,认为股东在出资以后,对投入公司的财产归属感日益淡薄,其所关心的是利润的最大化。公司作为股东获取利益的“平台”,在追求经济利益最大化的同时,还必须正确处理受经济法调控的法人财产权与效率、公平的关系。     

网络银行税收若干法律问题探讨

网络银行的虚拟化、数字化、无纸化等特点给现行税收实体法和程序法都带来了一定的冲击。本文以网络银行应否征税为研究起点,探讨了税法基本原则在网络银行税收中的适用、网络银行税收的构成要件以及完善网络银行税收的法律调控等问题。