Intellectual Property Law in the Internet Era

Intellectual property law in the network era
Abstract
TOC \t "小标题, 1,小标题 2, 2,小标题 3, 3"
Chapter 1 Introduction PAGEREF _Toc \h 4
1.1 Research background PAGEREF _Toc1 \h 4
1.2 Research aim and research questions PAGEREF _Toc2 \h 5
1.3 Dissertation outlines PAGEREF _Toc3 \h 5
Chapter 2 A Brief Overview of the Literature PAGEREF _Toc4 \h 6
2.1 Introduction PAGEREF _Toc5 \h 6
2.2 The challenges of intellectual property in the Internet age and how to deal with them PAGEREF _Toc6 \h 7
2.3 Internet piracy and infringement PAGEREF _Toc7 \h 9
2.4 Intellectual property rights in developed versus developing countries PAGEREF _Toc8 \h 12
2.4 Conclusion PAGEREF _Toc9 \h 16
Chapter 3 Methodology 2000 PAGEREF _Toc10 \h 16
3.1 Rationale of the survey PAGEREF _Toc11 \h 16
3.2 research method PAGEREF _Toc12 \h 17
3.2.1 Qualitative analysis: semi-structured interviews PAGEREF _Toc13 \h 17
3.2.2 Quantitative analysis: questionnaire for self-management PAGEREF _Toc14 \h 18
3.3 Participants PAGEREF _Toc15 \h 18
3.4 Measures PAGEREF _Toc16 \h 19
3.5 Limitation of research PAGEREF _Toc17 \h 19
3.6 Ethical consideration PAGEREF _Toc18 \h 19
Chapter 4 research findings 2000 PAGEREF _Toc19 \h 20
Chapter 5 General discussion and analysis of findings 3000 PAGEREF _Toc20 \h 20
Chapter 6 Conclusion and recommendations 1500 PAGEREF _Toc21 \h 20
Bibliography PAGEREF _Toc22 \h 20
Appendices PAGEREF _Toc23 \h 23
Appendix A Background information on the interviewee PAGEREF _Toc24 \h 23
Appendix B Questions for interviews PAGEREF _Toc25 \h 23
Appendix C Copyright Awareness Questionnaire for University Students PAGEREF _Toc26 \h 23
Appendix D PAGEREF _Toc27 \h 26
Appendix E PAGEREF _Toc28 \h 26
Chapter 1 Introduction
1.1 Research background
The Internet has rapidly become an essential part of contemporary society as a technological means, a means of information exchange, due to its global, real-time and interactive appeal that is unmatched by other traditional media. It is capable of providing a wide range of functions, from information distribution, communication, financial and business management to entertainment. Such qualities make cyber-legal issues complex and unpredictable. Moreover, the Internet has proven itself to be the fastest spreading unique medium in human history. Its global nature and the rapidity with which information is transmitted are unmatched by other traditional media.
With hundreds of thousands of miles of fibre optics connecting servers and giant storage devices, several terabytes of digital information, as vast as that stored in the Library of Congress, can be easily transferred from one end of the world to the other in a matter of minutes (Britz, 2013). In this context, the "Internet +", "Industry 4.0", "Industrial Internet", "Cloud Computing" and "big data" are emerging, but they are all fundamentally about the creation and aggregation of new knowledge, which inevitably leads to intellectual property issues. 知识产权（IP）包括四种独立的、不同类型的无形财产--即专利、商标、版权和商业秘密"。 The traditional IP protection system and the balance of interests theory are therefore being severely tested. Therefore, strengthening the protection of IPRs on the Internet will help countries gain a long-term competitive advantage and maximise social benefits, while the opposite will inhibit innovation, increase conflicts and be detrimental to the scientific, healthy and sustainable development of the economy and society. On the other hand, the development of the intellectual property system is closely linked to the popularity of the Internet, and a series of rights of a property nature, such as patents, trademarks, copyrights or copyrights, have taken on new characteristics in the online environment. In the face of the challenges posed by the rise of the Internet, it is urgent to develop and improve the legal system for the protection of intellectual property rights in relation to the Internet in order to better meet the needs of economic life. In recent years, the legal and technological, cultural and economic challenges of the world have been faced. Experts and scholars from all walks of life have been actively responding to these challenges, and have been working together to construct a theoretical system that is in harmony with the development of the information network industry, and have made great contributions to the study of intellectual property rights in the Internet era.[Hefter L.R. and Litowitz R.D., 'An Introduction To Intellectual Property Rights: What Is Intellectual Property' (2009) accessed 13 April 2022.]
网络中传播的内容和传播的方式多与著作权、邻接权相关，现有的理论研究和司法实践多集中于对知识产权、版权和互联网问题有关的讨论，但对于国际互联网对传统知识产权法律制度的影响以及两者之间的关系的彻底研究还没有。鉴于互联网的作用和重要性不断增加，所调查的问题越来越多，它已经成为当代学生社会特征不可分割的一部分。事实是，学生是我们社会中通过互联网使用科学产品和材料的最大群体。因此我将设计一份调查问卷，将其发送给在校大学生，
1.2 Research aim and research questions
The purpose of this study is being carried out regarding the lack of previous literature on the impact of the Internet on the IP legal system. Despite the importance of the subject, he has done very little research and study, particularly on the protection of the traditional intellectual property system.
With this in mind, the study will explore the following questions:
1）大学生是如何看待网络盗版的？ How do university students perceive Internet piracy?
2）街头盗版和互联网盗版之间是否有可替代性？ Is there substitutability between street piracy and Internet piracy?
3）网络知识产权与传统知识产权之间的关系 The relationship between online intellectual property and traditional intellectual property ?
4）网络环境下知识产权存在哪些问题？What are the problems of intellectual property rights in the online environment?
1.3 Dissertation outlines
The study is divided into six chapters, beginning with an overview of the study, in which the concept and characteristics of intellectual property are described, the relationship between big data and online intellectual property is summarised, and the reasons why we protect intellectual property are understood. This is followed by a critical review of the literature on the development of IPRs under the Internet. The methodology chapter outlines the data collection methods, evaluation methods, timing of the study and related ethical issues for this study. I have used a combination of literature research and content analysis methods for the study. The causes of online intellectual property behaviour are analysed and solutions are proposed.In addition, the findings chapter will discuss the results of the study in depth.
Chapter 2 A Brief Overview of the Literature
2.1 Introduction
The first chapter sets out the background and issues, the purpose of the research, the methodology and the significance of the study. As part of the background to the discussion of this issue, the researcher refers to issues relating to the impact on the territoriality of intellectual property rights resulting from the application of new technologies on the Internet, the difficulty of defending rights, Internet infringements and the current state of intellectual property protection on the Internet in various countries. This chapter reviews key literature on the development of intellectual property rights in the Internet era and provides a literature review of it. Much of the literature has been presented to explain the development of IPRs in the Internet age and the challenges they face.Previous research has addressed several aspects of the development of IPRs in the Internet age：(1) the challenges posed by the growth of the Internet to intellectual property rights, (2) the growth of the Internet making infringement more difficult to contain, and (3) the development of intellectual property rights in different countries on the Internet. In addition to this, however, it contains several unexplored dimensions that have recently attracted the attention of research in other disciplines. Some of these unexplored ones appear to be important and worthy of investigation An investigation of these issues is important. Few studies have examined the impact of the Internet on traditional IP systems.This review critically evaluates in a bid to address the gap. This chapter begins with an examination of how the globalisation of information and electronic services has challenged the exclusivity and territoriality of intellectual property rights, and this is followed by an examination of how the Internet has made the problem of intellectual property piracy and infringement more difficult to contain. In addition, the interrelationship between Internet and traditional infringement is examined. It then contrasts the development of IPRs in developed and developing countries . finally illustrates the relationship between greater protection of IPRs online and economic growth.
本文的检索数据库主要是 Science Direct、Pedro和Pubmed。谷歌学者搜索引擎也被利用了。关键词包括知识产权、互联网、传统侵权、盗版和知识产权发展。以“Short Video”为主题词检索到 98 篇文献。 其中涉及教育、医学、传播等领域。以“Short Video”和“Intellectual Property”为主题词检索到 34 篇文 献。其中涉及政策、金融、教育等领域。以“短视频”为主题词检索到 607 篇文献。以“短视频”和“知 识产权”为主题词检索到 19 篇文献。国内外对短视频平台知识产权管理的研究开始受到关注，但相关的 系统研究较少。以短视频知识产权相关文献数量和趋势，具体如图 1 所示。同时还搜索了相关文章的参考清单，随后通过图书馆间的借阅，在网上找到了特定的资源。
2.2 The challenges of intellectual property in the Internet age and how to deal with them
As an integral part of today's world, big data plays an important role in promoting social development. However, the Internet is a double-edged sword and, given the specific characteristics of its development, the protection of intellectual property rights on the Internet will have more negative than positive effects". While the Internet has opened up new platforms for people to communicate about their lives, it has also created many problems for society.[Shalyto A. A., 'A New Initiative In Programming. Foundation For Open Project Documentation'.[2003]]
（1） Territoriality and exclusivity of IP rights challenged
The principle of territoriality is one of the fundamental principles of international intellectual property law. Intellectual property rights are limited by national boundaries and are territorial in nature. Unless an international treaty to which the country is a party provides otherwise, the rights acquired by an enterprise in one country are usually less effective than in other countries. It goes without saying that intellectual property (IP) law is based on the principle of territoriality. The principle of territoriality also means that the granting of protection in one country does not create any legal right to the same legal protection in another country. More importantly, under the principle of territoriality, such exclusive IP rights do not receive the same legal protection in another country. In contrast, an important feature of the Internet Plus is that it breaks down all boundaries, including territorial ones. The Internet is not limited by national boundaries, which makes information and data processing accessible from anywhere in the world. With the development of the international internet and the integration of the global economy, it is to be expected that the territoriality of intellectual property rights will fade and there will be increasing concern about the role of territoriality. Certain countries try to regulate access to the Internet for residents and restrict it to varying degrees, but insider web users can still manage to circumvent the restriction. Currently, Alipay offers payments and related services in over 190 countries and territories, Amazon AWS provides cloud computing services to over one million businesses worldwide, and various e-commerce platforms enable the global exchange of goods and services. Intellectual property rights have consequently spread globally, with geography gradually fading away. Some scholars argue that the rise of global networks such as the Internet has seriously eroded sovereignty. In a networked environment, the transnational nature of network applications will create a huge contradiction and conflict with the territoriality of intellectual property rights. Conversely, Professor Perritt's view is that the rapidly globalising flow of information may strengthen the salience of national borders and sovereignty, albeit in questionable ways. Aoki also argues that the internet is not a threat to sovereignty and that sovereignty is not a threat to the internet. They argue that international protection of intellectual property does not eliminate and weaken or territoriality, but rather unfolds on the basis of territoriality[See, Hanns Ullrich, “TRIPS: Adequate Protection, Inadequate Trade, Adequate Competition Policy” (1995) 4(1) Pacific Rim Law & Policy Journal 153-210, p. 157 (noting that, “The international protection of technological property has been governed by three interdependent principles: 1) territoriality of protection; 2) national treatment of foreign owners of national intellectual property; and 3) international minimum protection.”).] [Some commentators have challenged the viability of the principle of territoriality in the age of globalism. See e.g. Maunsbach 2010 p. 705-706 (stating that harmonisation and the trend toward unregistered rights lessens the need for a strict adherence to the territoriality principle); Dinwoodie 2009 (suggesting a reconfiguration of the territoriality principle); Chisum 1997 p. 616-617 (stating that free riding in the area of bio-tech inventions is a reason to question the territoriality of patent rights in a global age); Garnett 2005:1 p. 341; Ginsburg 1995 p. 337-338.] [In case of patents, Art. 4bis(1) of the Paris Convention for the Protection of Industrial Property provides that ―Patents … shall be independent of patents obtained for the same invention in other countries...‖ This rule is known as the ―principle of independence of patent rights.‖] [Paulius Jurcys, 'The Role Of The Territoriality Principle In Modern Intellectual Property Regimes: Institutional Lessons From Japan' [2010] SSRN Electronic Journal.] [See, e.g., WALTERWRISTON, THETwILiGHTOFSOVEREIGNTY: HowTHEINFORMATIONREVOLUTION ISTRANSFORMINGOURWORLD(1992); DavidR.Johnson&DavidPost,LawandBorders-TheRiseofLaw in Cyberspace,48 STAN.L. REv. 1367 (1996); Anne Wells Branscomb, JurisdictionalQuandriesforGlobal Networks, in GLOBALNErwoRFKs: COMPUTERS ANDTHE INTERNATIONAL COMMUNICATION (Linda M. Harasim ed., 1993). See alsoCarl S.Kaplan, FindingGovernment'sRole in a Global Network, CYBER L.J. (July 10, 1997) .] [Keith Aoki, 'Considering Multiple And Ov Considering Multiple And Overlapping So Erlapping Sovereignties: Liber Eignties: Liberalism, Libertarianism, National So Tarianism, National Sovereignty, "Global" Intellectual Pr , "Global" Intellectual Property, And The Internet' (Repository.law.indiana.edu, 1998) accessed 31 March 2022.]
2.3 Internet piracy and infringement
The internet has taken on a deeper and broader function than any other medium before it, and as a result, the use of the internet for infringement has increased, and disputes involving online infringement abroad have become more frequent. Online piracy refers to the unauthorised digital downloading and distribution of copyrighted content, such as music or software. The rationale behind piracy has existed since before the birth of the Internet, but its popularity online emerged at the same time as the Internet. Despite being explicitly illegal in many developed countries, online piracy is still widely practised because it can be done easily and the ethics behind it are often defensible. The International Intellectual Property Alliance (IIPA) report on India documented that the country suffered trade losses worth US$496.3 million due to copyright piracy. The Internet has made copying, both legal and illegal, easier. Johns, whose book is fraught with wider implications for today's debates on issues such as open access, fair use, and free culture, ultimately argues that piracy has been at the centre of attempts to reconcile creativity and commerce - piracy is both an engine of social, technological and intellectual innovation and often their adversary. Researchers generally agree that the harmful consequences of online infringement are much more severe than those of traditional infringement. This theory seems to be generally accepted. Tin Cheuk (2009), for example, suggests that governments and copyright owners have had success in curbing street piracy, but have experienced setbacks on the Internet. This is because enforcement costs are higher on the Internet. Abdullah, Hanafi and Nawang argue that the piracy and infringement problems that are now occurring take more intangible forms and can be done more easily and more quickly. They also suggest that counterfeiting activities have a negative impact on economic growth, leading to loss of revenue in countries where illegal traders cannot be taxed. The emotional and financial damage caused to the infringer is even more damaging than traditional infringement. Online infringement includes infringement of the private rights of individuals and organisations, infringement of the public interest of society and infringement of the interests of the state, with the first category occurring most frequently. Copyright infringement is the intentional use of copyrighted intellectual property rights to the detriment of individuals and society without the permission of the author or copyright holder, or in violation of the terms of a contract for the use of the work. In July 2011, five Chinese writers, including Han Han, Li Chengpeng and five other publishers, including Mill Iron and New Classics, launched the Writers' Rights Defense Alliance, which sued Apple's App Store in the United States for selling apps uploaded by individual programmers for Chinese writers' works, including Han Han Han's Youth and His Country, Ming Yue's Those Things in the Ming Dynasty and Mai Jia's Underhanded. The Chinese government has claimed a total of RMB 11 million for the sale of apps uploaded by individual program developers, including Han Han's Youth and His Country, Ming Yue's Ming Dynasty and Mai Jia's The Dark Calculation. Jessica Litman wrote: "The purpose of copyright is to encourage the creation and mass distribution of all kinds of works."[Shashi Nath Mandal, 'Electronic Infringement Of Copyright: A Real Challenge Ahead' [2010] SSRN Electronic Journal.] [James Boyle, 'Intellectual Property Policy Online: A Young Person's Guide' [1996] SSRN Electronic Journal.] [Adrian Johns, 'Piracy: The Intellectual Property Wars From Gutenberg To Gates' (2014) 20 Media History.] [Nurhidayah Abdullah, Hanira Hanafi and Nazli Ismail Nawang, 'Digital Era And Intellectual Property Challenges In Malaysia' (2021) 29 Pertanika Journal of Social Sciences and Humanities.] [ Dorrain K. F., 'A Survey Of Developments In Copyright Law: A Perspective From Cyberspace.' (2014).] [Tin Cheuk Leung, 'What Is The True Loss Due To Piracy? Evidence From Microsoft Office In Hong Kong' [2010] SSRN Electronic Journal.]
Neil Netanel and Niva Elkin-Koren both teach that copyright law plays a formative role in a democratic society by striking a balance between the creation and dissemination of ideas and expression. Today, in the age of the internet, a randomly infringing statement or message can be spread to every corner of the world in seconds, causing adverse effects all over the world, and a single click can wipe out everyone's property and discourage authors from creating. On the other hand, with the rise of online shopping, the global problem of counterfeiting has become more acute (Shahbaz et al., 2019). Most countries that do not have IPR systems in place to protect them seem to have higher rates of online piracy (Priest, 2006). In other words, the stricter the enforcement of IPR protection, the lower the incidence of online piracy. Setiati and Darmawan (2018) highlight that with the expansion of Internet access, many illegal downloads of media content (whether for private use or resale) have become available to the public. Infringement occurs in all forms of piracy . Not all countries in the world have mature IP systems, which makes administration and enforcement require the help of a variety of stakeholders, particularly private IP expert groups (Deloitte, 2017). According to the Business Software Alliance (BSA) and the International Data Corporation (IDC), software piracy also has many negative effects on national economic development. The use of intellectual property on the Internet is a fast-growing part of the economy, taxes, and profits, so copyright issues directly affect the country's interests.[See Niva Elkin-Koren, Itís All About Control: Rethinking Copyright in the New Information Landscape, in THE COMMODIFICATION OF INFORMATION 79, 104ñ05 (Niva Elkin-Koren & Neil Weinstock Netanel eds., 2002) (demonstrating that the opendissemination of information and ideas is key to civic virtue); Netanel, supra note 10, at 285 (arguing that copyright law strikes a ìprecarious balanceî by encouraging authors to create and disseminate original expression by according them proprietary rights in their works, while at the same time inviting audiences and subsequent authors to use existing works in every way possible without infringing the copyright holderís proprietary rights).] [R. Towse, 'The Quest For Evidence On The Economic Effects Of Copyright Law' (2013) 37 Cambridge Journal of Economics.] [AVIHAY DORFMAN, 'Can Tort Law Be Moral?' (2010) 23 Ratio Juris.]
2.4 Intellectual property rights in developed versus developing countries
The proliferation of the Internet has significantly created new jobs, shortened product life cycles, circumvented international communications barriers, and transcended social and political realms. In as much as the internet has been beneficial and changed the livelihoods of many, it has come with its challenges. The internet has caused the devaluation of some intellectual property the same way it has created value for others. The internet has created confusion amongst leading policymakers, threatening future economic expansion. Thus, there is a need for proper management to ensure that the intellectual property community remains relevant. Internet development has impacted intellectual property law in developed and developing countries.[Andy Gibbs, 'Intellectual Property, The Internet, And Electronic Commerce Internet Trends: Role Of The Internet In The Development, Management And Commercialisation Of Intellectual Property (Wipo. int, 2001) accessed 12 April 2022.]
The internet has made it easy to modify or copy digitised material, and intellectual property owners do not benefit from their work. Thus countries have devised laws to prevent copying or pirating intellectual property such as music or movies in developed and developing countries. As the country where Internet technology first began and where the intellectual property system is most developed, the United States has also experienced a developmental journey of online intellectual property protection from an unconscious to valued, from refined to strengthened to counterbalancing from industry. And with world-class Internet technology and a founding tradition of respecting innovation and protecting intellectual property, it is a pioneer in online intellectual property legislation (Yi Yang, 2019). Web users and applications in the US are growing faster than in other industrial economies, and US companies have maintained a dominant position in these markets.The US Patent and Trademark Office and the US Copyright Office are charged with the constitutional right to give inventors the right to use their products in the marketplace or make profits by dedicating those rights to other persons. Thus, intellectual property is protected from unauthorised use by others, and different countries have developed laws to regulate the use of the intellectual property. The internet has made it easy to duplicate music where individuals send and receive the piece for free without paying, hence patent rights.[Joseph P. Martino, 'Technological Innovation And Economic Performance' (2003) 70 Technological Forecasting and Social Change.] [Oil States Energy v. Greene's Energy Group, 138 S. Ct. 1365, 584 US, 200 L. Ed. 2d 671 (2018).]
Developed countries have robust IP rights and protections compared to developing countries. As a result, there has been opposition to IP rights, which are viewed as a tool to benefit more giant corporations and developed countries at the expense of diffusion of ideas, human freedom, and growth in the developing countries. Developed countries have developed robust IP rights, emphasising IP rights as an integral part of global trade. There should be an established international framework of IP rules, norms, and cooperation. Countries such as the United States, European Union Members, and Korea, amongst others, have recognised the vital link between IP and innovation and hence have embarked on efforts to strengthen the international framework of intellectual property rules, norms, and cooperation.[ ibid]
Developed countries dominate knowledge-intensive flows, evidenced by the global cross-border exports of commercial knowledge. However, the developing countries’ shares in knowledge-intensive flows are increasing, with China ranked the global second largest. Patent applications filed by residents of the developing economies increased from 12% in 1992 to 26% in 2010, thereby signalling the counter-increased claim of knowledge-based flows. Additionally, Asian countries, especially China, have received the majority of IP filings, and Huawei, a Chinese company, was the top patent cooperation treaty applicant with an estimated 3,898 published applications. The World Trade Organizations Agreement on Trade-Related Aspects of Intellectual Property Rights (TRPIS) encompasses a set of principles creatively adapted by several countries. They contain a set of intellectual property laws that protect the public from blatant abuse by violators of IP rights.[ Nigel Cory Stephen Ezell, 'The Way Forward For Intellectual Property Internationally' (Itif.org, 2022) accessed 12 April 2022.] [Andy Gibbs, 'Intellectual Property, The Internet, And Electronic Commerce Internet Trends: Role Of The Internet In The Development, Management And Commercialisation Of Intellectual Property (Wipo. int, 2001) accessed 12 April 2022.] [ay Dratler, 'Dutfield And Suthersanen On Global Intellectual Property Law' (Google Books, 2006) accessed 12 April 2022.]
Developing countries experience problems adopting and facilitating the IT (Information Technology) industry. Issues such as difficulties in the diffusion of technological innovation have jeopardised the efforts to implement and regulate the proliferation of the Internet. The lack of coordinated national policies in the IT industry development prevents firms and handling agencies from fully recapping the benefits of IP rights brought by the Internet. The developed countries, primarily the US, have been accused of using multinationals to exercise imperial control over the developing countries such as South Africa. The unequal relationship has been fostered by global dominance in the digital ecosystem, which allows them to conduct mass and targeted surveillance.  The global South elites advocate for the decentralisation of technology and giving the people the power to control their emerging digital empire.  [Alok Raj and others, ‘Barriers to the Adoption of Industry 4.0 Technologies in the Manufacturing Sector: An Inter-Country Compar...