Moscon, Valentina (2009) Copyright law, Contract law, Rights Expression Languages and Value-Centered Design Approach. [Preprint] (Unpublished)

Preview

PDF Download (159Kb) | Preview

Abstract

Technological instrument constitutes a mean for pursuing the human goals . Technique is an human intelligence’s product: scientific and technological development has characterized the culture evolution. Nowadays, however, the technical means are so much increasing that man is loosing control over them. There are many ways interpret the relationship between technology and society: some scholars assume technology is an independent and autonomous force ; other describe it as a factor that defines how we relate to the world we live in. The “neutralists”, on the other hand, believe technology is nothing but a tool and has no bearing on our behavioural freedom as such. The technique could be used for different goals: for the freedom but also for the oppression, for the centralisation of power, as for decentralization. The technique seeks to conceal its power declaring its diversity from political power because of its neutrality and objectivity. In the digital environment, the development of Digital Rights Management (DRM) systems, demonstrates (not only in the copyright area) the power of technology to supplement and even supplant legal regulation. Much as physical barriers and spatial relations constrain behaviour in actual space, technical standards constrain behaviour in cyberspace. In the physical world, people cannot walk through solid walls or occupy two spaces simultaneously. Similarly, there are certain activities that simply cannot be performed on a particular computer system, because the system is not built to accommodate the behaviour – the system may be programmed to deny access without a password, prevent logging on simultaneously from two terminals, or prohibit alteration of a file that is designed “read only”. In cyberspace , however, how Lessig (and other scholars) argued, the prevailing instrument of regulation is not the rule of law, but what he calls architecture: the commands that are embedded in the communication protocols of the Internet and the software application. Human behaviour is steered by this invisible hand. Technical standards, which are within the control of the designer, conferring on him the power to “govern” behaviour with regard to that system, become a “law”. In other words, the information “code” is becoming, de facto, a regulation built in architecture: the code structures the users freedom and behaviour as a given: no alternatives are visible and no choice can be made. In the information environment, each step in the advancement of technology and particularly in the communication technology, enable maximum access and individual expression, but maximum control over individual behaviour, as well. The implications and mutual relations between technique and law are incontestable and the tie is even stronger in the digital technologies environment : the law evolves with and adapts to the technical development. At the same time the technique reveals new forms of regulation. One can distinguish several interactions between information technology and law, in summary it would be said: 1. Code could partly complements law. We can think, for instance, of the speed limits enforced though law and supported by constructed bumps in the road. 2. Law regulate code. The laws regulating technological measures that are used to protect copyrighted works may serve as an example of that relationship (See Dir. 2001/29 EU and DMCA in U.S.). 3. Code development influences law itself. Because technological standards control user behaviour, they may directly supplant competing legal rule sets (DRM, for instance) . In legal terms, the latter perspective seems to be the most risky because it opens the doors to company self-regulation threating fundamental rights

Actions (login required)