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The Appropriateness of Criminal Copyright Law and Conflict Between Freedom of Expression: Observation from the Perspective of History, Theory and Constitutional Principles
Copyright,Freedom of expression,Criminal liability,Parody,Derivative work,Merges,
|Publication Year :||2020|
This thesis hopes to create a harmonious interactive relationship between copyright and freedom of expression, and will focus on the criminal liability of copyright.
The first chapter of this thesis explains the motivation behind the research, research methods and limitations, and the thesis layout. The second chapter discusses the developmental history of copyright, as well as describing its nature and scope. This thesis selects Britain, France, the United States, and the development of international conventions to review and observe that the core of copyright protection is related to reproducibility, differences in protection theories, the possibility of speech censorship, and the possibility of conflicts between copyright expansion and freedom of speech.
The third chapter searches for the scope of rights and interactive interpretation methods from the upper abstract theory. This thesis introduces theories of natural law (Locke, Kant), utilitarianism, etc. Finally, this thesis adopts the three-tier theoretical framework of Merges, including the upper-level of some abstract principle and theory (Normative Foundations), the midlevel of four comprehensive judgment principles (including non-removal, dignity, efficiency, and proportionality principles), and the lower level of the practical operation (Specific Practices). The midlevel platform connects the abstract upper level theory and the lower level practical operation; meanwhile, this thesis adopts Kant’s theory as the upper-level theory.
The fourth chapter reviews the 'Internal Adjustment Principles', and explains the necessity of the review, the practices of various countries, how to deal with conflicts, whether there are conflicts, and whether the current internal adjustment principles can be handled properly. First of all, regarding the necessity of reviewing criminal law norms and their functions, this thesis adopts the 'Minimum Balance of Interests Theory', which means criminal law norms are only to be applied when the total amount of interests is seriously unbalanced. Secondly, this thesis compares the United States and Japan and finds that Taiwan's law revision is too passive. Thirdly, this thesis explains the relationship between freedom of expression and copyright from the perspective of the constitution to clarify ways to deal with conflicts. Fourthly, this article sorts out practical and theoretical opinions and believes that there are more and more conflicts between copyright and freedom of expression. Finally, this article reviews the actual operation of the internal adjustment principle (including the theory of the idea/expression dichotomy, fair use, duration, and parody) and believes that the current internal adjustment principle has its limits and cannot be properly performed on the right holder and the user. In addition, Taiwan can try to introduce the EU (represented by France) parody rule, which has clearer requirements.
The fifth chapter reviews the 'External' in the form of constitutional review and review of draft amendments. First of all, this thesis explains that there is still the possibility of pre-censorship and content censorship of copyright regulations, so it is possible to adopt strict review. Next, this article divides the criminal norms of the Copyright Law into the following five categories: Replicate crimes and others that do not add creativity; Acts of altering the content of the work or adding its own elements; Public publication rights, right to expression of name; Rights to prohibit improper alterations; Other less restrictive freedom of expression.
In Replicate crimes and others that do not add creativity, Acts of altering the content of the work or adding its own elements, and Rights to prohibit improper alterations, this thesis adopts the high standard of review. In Public publication rights, right to expression of name and Other less restrictive freedom of expression, this thesis adopts the low standard of review.
This thesis believes that Replicate crimes and others that do not add creativity, exhibits insufficient concerns about secondary, derivative creation or use, imbalance of criminal liability for genuine products, and insufficient concerns about the behavior of parallel input of genuine products, which may be unconstitutional; while Acts of altering the content of the work or adding its own elements and Rights to prohibit improper alterations, directly restrict secondary, derivative creation or the content used should be unconstitutional; meanwhile the restrictions on freedom of speech are small and should be constitutional in Public publication rights, right to expression of name and Other less restrictive freedom of expression.
Finally, this thesis reviews the recent draft amendments (draft amendment of full-scale copyright law, draft amendment in response to the CPTPP), and this thesis believes the fair use norms are still need to strengthen, and the criminal part can be modified with reference to the adjustment plan mentioned in this thesis.
In conclusion, in terms of upper-level principles, the acquisition and protection scope of copyright should be maximized (to maximize the scope of choice of the right holder), but the scope of legal protection, the scope of rights, and the handling of conflicts with other rights, freedom, etc., should be subject to the Universal Rule. In terms of actual application, the midlevel principles can be comprehensively judged and applied to the lower-level operations, such as strengthening and amending the fair use regulations, deleting some criminal regulations, adding restrictive elements, etc., to restore the state of harmony of rights.
|Appears in Collections:||法律學系|
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