Academic journal article Trames

Technology-Oriented Regulatory Model in China and the West: A Contextual Analysis of Digital Rights Management Architecture

Academic journal article Trames

Technology-Oriented Regulatory Model in China and the West: A Contextual Analysis of Digital Rights Management Architecture

Article excerpt

Abstract In China, a mere copying and pasting of the regulative skeleton from the West aiming to enhance the quality of regulations would always invite criticism. With respect to the legal system of intellectual property rights protection, especially the digital copyright legal regime, it looks more like a paradoxical combination of the Western approach. Accomplished success has been achieved on the 'black letter' (doctrinalism) aspect. However, there has been little awareness of the comparison from the perspectives of cultural, social, and political context (contextualism) where the regulation develops. This article reviews why and to what extent the cultural context matters in regard to the interaction between technology and digital copyright regulations. This research will eventually come to a conclusion that in those developing countries, such as China, legal transplant could still need to be carefully selected and tailored to the socio-cultural and economic demands of that country.

Keywords: digital copyright, contextualism, digital rights management (DRM), DRM regulatory model, intellectual property protection, cultural lag, reciprocal determinism theory, local protectionism

1. In an era when copyright protection system meets digital technology

Technology produces far-reaching and profound effects on people's lives. Compared to science, technology plays more direct and important roles in people's behaviours and day-to-day lives (Weber et al. 2010). What's more, concerning the relationship between technology and law, development of technology shall directly drive the growth of wealth to further push the growth of 'rights' as a vital factor in economic relations (Luo 2006), which also leads to changes in the allocation principles and rules governing both rights and power. Friedrich Engels believes that economic relationships are a critical base of social history, including all manufacturing and transportation techniques (Ibid). Furthermore, they also determine the exchange, means of distribution and social class divisions after the disintegration of the clan society. Copyright regulations emerged from the need to protect the intellectual works from any form of unauthorized use and distribution. It was conceived on the basis of protecting the rights-holders' creation from illegitimate use by the public. When copyright exists independently under the intellectual property regime, it merely regulates the issues that have occurred in the physical world.

Following the constantly and rapidly developed technologies, there has been an unprecedented change in the ways in which various digital works are accessed and disseminated. This has necessitated the revision of copyright regulatory systems and their regulatory models on a continuous basis in a way that they can timely and adequately respond to the seemingly insurmountable challenges of combating the indiscriminate and illegitimate reproduction and distribution of creators' work that has been facilitated by new technologies.

We become what we behold. We shape our tools, and thereafter our tools
shape us. (Marshall McLuhan)

With the rapid development of new technologies, the problems regarding copyright gradually spread into the digital context (Postigo 2012). It is understandable that the current copyright system has always been challenged by the technological development, and sometimes the current copyright regime is delayed when it is conceived to adapting to this sort of technical innovation. Growing concern from the public is deemed as a control mechanism for the dissemination of information (Will 2014). The whole copyrights system has been primarily and gradually changed by novel technology, which embarrasses the exploitation of copyright works and makes it hard to manage in a networked environment. In the digital context, the massive reproduction and distribution of new information and technological innovation has spread dramatically. …

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