Knowledge economics and reform of laws governing hi-tech industries -- 2
知識經濟與高科技產業法制改造 (二)
2002-03-27 / Taiwan News, Special Column /
FAN CHIEN-TE (Professor, Tsinghua University Institute of Technological Legal Studies): Technologically undeveloped groups of people and countries have unfortunately fallen into the plight of being looted of their resources and cultural artifacts. It is difficult for relatively undeveloped countries' development and intellectual property protection legislation to escape the grip of global mainstream values and profit motive imposed by advanced countries. For example, over the course of ROC-US trade negotiations begun in the 1980s, the protection extended to U.S. trademarks as yet unregistered [in Taiwan], Taiwan's cooperation in conducting anti-counterfeiting inspections of its export goods and digital equipment, and ROC-US copyright agreement restrictions on export of genuine name-brand goods [produced or published under license in Taiwan for sale only in Taiwan] all serve to demonstrate the aggressiveness of IPR kingpin countries in building up their economic and trade interests, and show their determination to integrate their international political and economic interests with IPR protection systems. By contrast, development of Taiwan government efforts is still bogged down in mere promotion of technological applications and in a mindset which mistakenly disregards the path-breaking value of development on the legal front.
范建德（清華大學科技法律研究所教授）：科技落後之族群與國家則不幸落入資源與文化被掠奪的困境。低度開發國家的發展，乃至智慧財產的保護立法鈞難以跳脫先進國家的主流價值與利益觀；例如，在1980年代開始的中美貿易諮商過程中，從保護未經註冊的美國商標、台灣配合實施的出口商品與數位產品仿冒檢測，以及中美著作權協定對於真品平行輸入的管制等，在在證明智慧財產權大國在營造其經貿利益上之強勢，更顯示出其結合國際政經利益與智慧財產權保護制度之決心。相對的，台灣的發展仍停留在科技主導，而忽視法律之先導價值的錯誤認知上。
Looking at present-day international society from the standpoint of countries with relatively low levels of technological development, their affirmation of mainstream-value systems of law has had its inescapable painful imperatives. And after that affirmation, they have been powerless to resist the high royalties payments and pressures of the threat of technology or trade boycotts and trade sanctions, thus leaving them eternally under the thumb of technologically powerful countries.
放眼當今國際社會，對科技水平較低之國家而言，認同主流價值的法制有其不得不然的苦衷，然認同之後，則無力抗拒高昂的權利金與技術或市場之杯葛，以及貿易市場制裁為後盾的壓力，導致其永遠沉淪在科技強權的壓力下。
These developments have now attracted the attention of the international society. In the world of the Internet, there is the development of so-called "shareware" associations, with the intent of creating a mechanism for humanity's sharing of resources. This sort of development poses a brazen and direct challenge to the traditional value of IPR protection.
目前，這些發展已經引發國際社會之重視，在網路世界就有所謂自由軟體協會之發展，企圖營造出另一種人類分享資源的機制。這樣的發展赤裸裸地正面挑戰了傳統的智慧財產權保護價值觀。
Actually, from the examples of the performances of American companies such as IBM or Microsoft, we can see that over the past several years, whether with respect to efforts to develop a global legal system or to the establishment of domestic laws such as the Computer Information Transaction Act, the American government's actions represent its determination to employ a worldwide legal framework to maintain its knowledge-based economy's global competition interests. By contrast, development of Taiwan government efforts is still bogged down in mere promotion of technological applications and in a mindset which mistakenly disregards the path-breaking value of development on the legal front.
其實，透過美國如IBM與微軟公司之表現，我們可以看出在過去幾年中，美國不論在全球法制發展之著力或其內國法，如《電腦交易資訊模範法》，即代表其以全球法律規範來維護其知識經濟全球競爭利益之決心；相對的，台灣的發展仍停留在科技主導，而忽視法律之先導價值的錯誤認知上。
As we face knowledge-economy challenges, we in fact entertain a number of delusions. Whether with respect to our country's promotion of New System of Diversified Admissions, development of biotechnology, or the core questions of technological exchange, we can't help but wonder whether the entire society is aware that knowledge is based on people's ways of thinking and on their having an accurate grasp of the principles of dealing with the things of nature. Our perception of "knowledge-based economics" is still mired in the concept of industrial property protection of two centuries ago; we still think that "knowledge-based economics" is merely a matter of encouraging [industrial] innovation.
我們在面對知識經濟之挑戰時，確實有許多迷思。不論自我國推動中的多元入學方案或生物科技產業之發展，乃至技術交易的核心課題，我們不得不懷疑整個社會是否了解知識源自於人的思維及對萬物事理有正確的認知。我們對於知識經濟之認知，仍拘泥於兩百年來工業財產權保護的觀念，仍以為鼓勵創新就是知識經濟。
The knowledge-economy-era body of laws relating to technology ought to go beyond the matter of responding to superficial contingencies and the schemes of a technological elite, and should turn its attention to the enhancement of education and core cultural values, breaking down bureaucratic barriers so as to allow the harmonious coalescence of resources with the needs for international competition.
知識經濟時代的科技法制應跳脫表象需求的因應與精英式主導的企圖，回歸對教育與文化核心價值的提昇，排除官僚障礙，讓資源與國際競爭之需求相契合。
Nowadays we characterize the impact of information technology as a revolutionary impact. If we then take technology as the focus of our examination of present problems, we have to seek out programs for solution of technological problems, as for example security-code techniques for maintaining or enhancing confidentiality of information. But, on the other hand, there are always those who will try to break codes, such being human nature. A scientist of Chinese ancestry once said there's no longer any way to protect the confidentiality of Internet communications, and that the only solution is to turn to the law. I really don't know if this view represents an elevation or a deprecation of the role of those in the legal studies field; for the viewpoint of law is quite simple, namely "management," whereas in our thinking about solution of such problems, in the process leading up to opting for legal solutions, there actually ought to be two other approaches, one being [philosophical] policy approach, another being the nurturing of human conscience, which is to say self-constraint.
今日我們將資訊科技的衝擊稱為革命性的衝擊。現在假設我們以科技作為一個探討問題的中心，則我們必須尋求科技問題的解決方案，例如防密、加密技術等，但相對的卻也有另外一些人會想著去破解，這就是人性。曾經有一位華裔科學家說，有關網路私密性的保護已經完全沒有方案了，唯一的方法就是回到法律。這種說法對學法律的人來說，真不知是被抬舉了？還是被褻瀆了？因為法律的看法很簡單，就是「管」。然則在解決問題的思考上，在跨越到法律的選擇過程中，其實應該還有兩個方案，一個是政策，一個是鼓動人的善性，即自我節制。
Let's take MP3 as an example. Why has MP3 enjoyed such great popularity since its appearance? Because it is such a strong embodiment of the ideal of sharing. But this characteristic of the information world has also had a threatening impact upon many of the world's existing interests and values. Before settling upon any related policies, we ought in fact to first consider how copyright holders should be paid fees -- through sales of CDs or via the Internet downloading process? to internet service providers or to recording companies? There are actually a wide variety of commercial modalities to choose from. But in trying to fit such a complexity of options with presently existing social values, businesspeople haven't much interest in spending time to push for new legislation but depend on long-standing values and morals. For this reason, modern-day people are still under the control of post-industrialization legal concepts relating to protection of items of industrial production, matter-of-factly concluding that MP3 users are thieves or robbers. But think back for a moment to the noble conception of authorship rights existent during the era of ancient Mediterranean civilization, when the dissemination of knowledge was considered to be an extension of human character and a part of freedom of speech, and when no one talked about money! Putting it in an extreme form, why should we of today be bound by the values of the mere past two centuries and deny the value of the totality of what preceded?
以MP3為例，為什麼MP3的出現會受到這麼大的鼓舞？因為它具有充分的分享性，但資訊社會的這項特色卻也衝擊到了既有世界很多的利益與價值觀。要制定相關的政策前，其實應該先考慮：著作權人應該如何收費？是賣資訊光碟來收費？還是透過網路下載來收費？是向網際網路服務提供者ISP（Internet Services Provider）？還是向製造者付費？這其中有很多不同的商業模式。但將這麼複雜性的選擇套到現有的社會價值觀，商人卻沒有太多興趣花時間來推動立法，而直接訴諸舊有的價值或道德觀來維護其利益。因此現代人仍受到工業化以後保護著作物之法律觀的影響，會直接認為這些MP3用戶是小偷、強盜；但我們回頭想想地中海時代的著作權概念是多麼高貴，認為知識的傳播是一種人格的延伸、是言論自由的一部份，沒有人談錢！極端一點說，為什麼我們今天要用短短近兩百年的歷史價值觀來否決過去的一切？
Here in the East we often say, after all was it Confucius who was great? or his 72 disciples who were great? or the person who later wrote down the Confucian Analects who was great? If Confucius had demanded royalties, we wouldn't have the Analects today. But with the firm establishment of the value concept [of knowlege] developed over the past two centuries, and, with the advent of the powerful concept of knowledge as a commercial commodity established through international-scale legislation, the moral dimension [of sharing knowledge] has disappeared, the joy of sharing has disappeared, and inter-human relations seem to have become contentious, rife with divisive barriers.
在東方，我們常講，到底是孔子偉大還是他七十二個弟子偉大、或是後來寫下論語的人偉大？如果孔子要收權利金的話，今天就不會有論語出現。但在過去這兩百年來的價值觀建立得那麼堅強，它透過國際性的立法，建立知識有價的強力觀念，相對的，它的道德性沒有了，分享的喜悅也沒有了，人與人的關係好像是在挑釁，彼此充滿了界限。
Quite clearly, judging from the public's reaction to MP3, and as demonstrated by the process of establishing an international copyright legal framework, we have already thrown away the opportunity to handle the problem through establishment of a new [philosophical] policy approach and have no intention of changing the modus of information exchange of the past two centuries; but at the same time we're confronted with the reality of the inadequacy of laws and are forced to still somehow come up with a solution. Given this predicament, urging self-constraint has become an imperative. It may be foreseen, however, that the approach of leaving it to those who stand to reap the greatest profits to demand self-constraint on the part of those who are relatively weaker, poorer or destitute, will not achieve the desired effect. For example, students are very reluctant to spend money; so, given the choice of spending NT$ 350 [to buy a CD recording] or employing their own knowledge to manipulate a computer a little and get the [same digital] information, they will of course choose the latter option. Basically, the ability of information controllers to exert decision-making, controlling power over information receivers is in no way at variance with the price-value theory accompanying the early development of capitalism theory. Therefore, in the process of urging self-constraint, if we cannot at the same time promote the establishment of a balance of rights and benefits between the two, there will ultimately be no solution, but those with a grip on power will witness the rise of populist movements, in the course of which there may occur much irrationality and turmoil, and in the end society will be forced to resort to a [strictly] legal approach to resolving problems.
很顯然的，從MP3的社會反應來看，正如當前國際間著作權法的建構過程，我們已經放棄了重新建構政策的機會，也不想改變近兩百年來的交易模式，或人與人互動的方法，但面對法律不彰的事實，我們卻仍不得不去設法解決問題，從而在兩難之下，鼓吹自我節制即成為必要。但是可以預見的是，讓那些擷取最大利益的人來要求相對弱勢或較貧乏、窮困的人去自我節制，往往也無法達到預期效果，例如學生就是很捨不得花錢，因此將三百五十元的價格（一般光碟市價）拿來 和 在電腦上利用自己的知識操作一下就可以獲得的資訊 來比較，一定會選擇後者。基本上，握有資訊掌控權者可以決定、控制資訊接受者，這與早期資本主義理論發展下的價格理論沒什麼兩樣。所以在鼓吹自我節制時，如果不能同時促成兩造權益之平衡，最後還是無解；握有權利者最後會看到庶民主義的興起，裡頭甚至可能會夾雜很多非理性與動盪，最終社會還是必須選擇用法律來解決問題。
Further examining the meaning of MP3, the presently [most popularly] used INTERNET EXPLORER and LINUX [Internet-access programs] represent different modalities. A fee must be paid for each duplication of the IE program, and a fee must likewise be paid for each subsequent IE upgrade. [Microsoft] has employed the IPR protection legal framework developed over the past two centuries to create its [Internet-access] empire. With LINUX, by contrast, the emphasis is on sharing, publishing that program on the Internet for free use by everyone, without concern for copyright benefits but instead seeking compensation through provision of service. And hasn't LINUX achieved excellent results in this way? In fact, the LINUX model perhaps presents us with an excellent opportunity indeed, leading us to contemplate exactly what the [philosophical] policy framework of this modern-day information age should be. Currently, we educate everybody only in the matter of how to protect intellectual property and don't educate everybody in the matter of how to go about sharing in order to release the power of diversification of individual values and in this way reap benefits.
再從MP3的意義來看，現在IE與LINUX有不同的模式，IE每一份複製都要付費，而且後續的更新也要付費；它是用過去兩百年發展出智慧財產保護模式來形成它的王國。而LINUX 強調的卻是分享，將程式免費放在網路上讓大家來使用，完全不管版權問題，而朝向以服務來收費，LINUX以這種方式不也得到很好的成果？其實LINUX這種模式或許正是一種很好的機會，讓我們來思考在現今資訊時代的政策模式究竟應該如何。目前我們都是教育大家怎麼保護智慧財產，而不是教育大家怎麼去分享，發揮個人價值的多元化並透過這樣來獲取利益。
Should a knowledge-based economy, after all, concern itself most with products or with the value of human beings? Due to the fact that everyone is confused about this, it has led to the situation wherein conventional business theory and management models are unable to adjust to the needs of a knowledge-based economy, yet it is easier to try to deal with problems by falling back on the concepts of the old industrial economy. Perhaps after a period of time, we shall yet have opportunities for change, since the LINUX model, at least, has given us a glimmer of hope.
到底知識經濟該強調產品？還是人的價值？因為大家都不太清楚，所以引到知識經濟模式中，傳統商業理論、管理模式都無法跟上，還是必須回頭依據商品經濟的概念來處理問題比較容易；或許經過一個階段後，我們還會有機會改變，因為LINUX的模式起碼給了我們一些希望。
In truth, the erection of a legal system must be based on a cultural foundation. In our present endeavor to establish laws to guide development of the information society, we must therefore embody in them the cultural values most crucial to this information-based society of ours, and they must additionally be global in nature, as only such laws have the power to express the maximum value of law.
其實建立一個法律制度一定要有一個文化的背景，今天我們要訂定法律來引導資訊社會的走向，就是要把這個資訊化社會的最大文化價值實現來，而且必須是全球性的，這樣的法律才算發揮了它最大的價值。
The end
全文完
Compiled and edited by Tina Lee/Translated by James Decker
編輯李美儀/英文翻譯曹篤明
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Wenn China mal läuft...
mfg,airest
知識經濟與高科技產業法制改造 (二)
2002-03-27 / Taiwan News, Special Column /
FAN CHIEN-TE (Professor, Tsinghua University Institute of Technological Legal Studies): Technologically undeveloped groups of people and countries have unfortunately fallen into the plight of being looted of their resources and cultural artifacts. It is difficult for relatively undeveloped countries' development and intellectual property protection legislation to escape the grip of global mainstream values and profit motive imposed by advanced countries. For example, over the course of ROC-US trade negotiations begun in the 1980s, the protection extended to U.S. trademarks as yet unregistered [in Taiwan], Taiwan's cooperation in conducting anti-counterfeiting inspections of its export goods and digital equipment, and ROC-US copyright agreement restrictions on export of genuine name-brand goods [produced or published under license in Taiwan for sale only in Taiwan] all serve to demonstrate the aggressiveness of IPR kingpin countries in building up their economic and trade interests, and show their determination to integrate their international political and economic interests with IPR protection systems. By contrast, development of Taiwan government efforts is still bogged down in mere promotion of technological applications and in a mindset which mistakenly disregards the path-breaking value of development on the legal front.
范建德（清華大學科技法律研究所教授）：科技落後之族群與國家則不幸落入資源與文化被掠奪的困境。低度開發國家的發展，乃至智慧財產的保護立法鈞難以跳脫先進國家的主流價值與利益觀；例如，在1980年代開始的中美貿易諮商過程中，從保護未經註冊的美國商標、台灣配合實施的出口商品與數位產品仿冒檢測，以及中美著作權協定對於真品平行輸入的管制等，在在證明智慧財產權大國在營造其經貿利益上之強勢，更顯示出其結合國際政經利益與智慧財產權保護制度之決心。相對的，台灣的發展仍停留在科技主導，而忽視法律之先導價值的錯誤認知上。
Looking at present-day international society from the standpoint of countries with relatively low levels of technological development, their affirmation of mainstream-value systems of law has had its inescapable painful imperatives. And after that affirmation, they have been powerless to resist the high royalties payments and pressures of the threat of technology or trade boycotts and trade sanctions, thus leaving them eternally under the thumb of technologically powerful countries.
放眼當今國際社會，對科技水平較低之國家而言，認同主流價值的法制有其不得不然的苦衷，然認同之後，則無力抗拒高昂的權利金與技術或市場之杯葛，以及貿易市場制裁為後盾的壓力，導致其永遠沉淪在科技強權的壓力下。
These developments have now attracted the attention of the international society. In the world of the Internet, there is the development of so-called "shareware" associations, with the intent of creating a mechanism for humanity's sharing of resources. This sort of development poses a brazen and direct challenge to the traditional value of IPR protection.
目前，這些發展已經引發國際社會之重視，在網路世界就有所謂自由軟體協會之發展，企圖營造出另一種人類分享資源的機制。這樣的發展赤裸裸地正面挑戰了傳統的智慧財產權保護價值觀。
Actually, from the examples of the performances of American companies such as IBM or Microsoft, we can see that over the past several years, whether with respect to efforts to develop a global legal system or to the establishment of domestic laws such as the Computer Information Transaction Act, the American government's actions represent its determination to employ a worldwide legal framework to maintain its knowledge-based economy's global competition interests. By contrast, development of Taiwan government efforts is still bogged down in mere promotion of technological applications and in a mindset which mistakenly disregards the path-breaking value of development on the legal front.
其實，透過美國如IBM與微軟公司之表現，我們可以看出在過去幾年中，美國不論在全球法制發展之著力或其內國法，如《電腦交易資訊模範法》，即代表其以全球法律規範來維護其知識經濟全球競爭利益之決心；相對的，台灣的發展仍停留在科技主導，而忽視法律之先導價值的錯誤認知上。
As we face knowledge-economy challenges, we in fact entertain a number of delusions. Whether with respect to our country's promotion of New System of Diversified Admissions, development of biotechnology, or the core questions of technological exchange, we can't help but wonder whether the entire society is aware that knowledge is based on people's ways of thinking and on their having an accurate grasp of the principles of dealing with the things of nature. Our perception of "knowledge-based economics" is still mired in the concept of industrial property protection of two centuries ago; we still think that "knowledge-based economics" is merely a matter of encouraging [industrial] innovation.
我們在面對知識經濟之挑戰時，確實有許多迷思。不論自我國推動中的多元入學方案或生物科技產業之發展，乃至技術交易的核心課題，我們不得不懷疑整個社會是否了解知識源自於人的思維及對萬物事理有正確的認知。我們對於知識經濟之認知，仍拘泥於兩百年來工業財產權保護的觀念，仍以為鼓勵創新就是知識經濟。
The knowledge-economy-era body of laws relating to technology ought to go beyond the matter of responding to superficial contingencies and the schemes of a technological elite, and should turn its attention to the enhancement of education and core cultural values, breaking down bureaucratic barriers so as to allow the harmonious coalescence of resources with the needs for international competition.
知識經濟時代的科技法制應跳脫表象需求的因應與精英式主導的企圖，回歸對教育與文化核心價值的提昇，排除官僚障礙，讓資源與國際競爭之需求相契合。
Nowadays we characterize the impact of information technology as a revolutionary impact. If we then take technology as the focus of our examination of present problems, we have to seek out programs for solution of technological problems, as for example security-code techniques for maintaining or enhancing confidentiality of information. But, on the other hand, there are always those who will try to break codes, such being human nature. A scientist of Chinese ancestry once said there's no longer any way to protect the confidentiality of Internet communications, and that the only solution is to turn to the law. I really don't know if this view represents an elevation or a deprecation of the role of those in the legal studies field; for the viewpoint of law is quite simple, namely "management," whereas in our thinking about solution of such problems, in the process leading up to opting for legal solutions, there actually ought to be two other approaches, one being [philosophical] policy approach, another being the nurturing of human conscience, which is to say self-constraint.
今日我們將資訊科技的衝擊稱為革命性的衝擊。現在假設我們以科技作為一個探討問題的中心，則我們必須尋求科技問題的解決方案，例如防密、加密技術等，但相對的卻也有另外一些人會想著去破解，這就是人性。曾經有一位華裔科學家說，有關網路私密性的保護已經完全沒有方案了，唯一的方法就是回到法律。這種說法對學法律的人來說，真不知是被抬舉了？還是被褻瀆了？因為法律的看法很簡單，就是「管」。然則在解決問題的思考上，在跨越到法律的選擇過程中，其實應該還有兩個方案，一個是政策，一個是鼓動人的善性，即自我節制。
Let's take MP3 as an example. Why has MP3 enjoyed such great popularity since its appearance? Because it is such a strong embodiment of the ideal of sharing. But this characteristic of the information world has also had a threatening impact upon many of the world's existing interests and values. Before settling upon any related policies, we ought in fact to first consider how copyright holders should be paid fees -- through sales of CDs or via the Internet downloading process? to internet service providers or to recording companies? There are actually a wide variety of commercial modalities to choose from. But in trying to fit such a complexity of options with presently existing social values, businesspeople haven't much interest in spending time to push for new legislation but depend on long-standing values and morals. For this reason, modern-day people are still under the control of post-industrialization legal concepts relating to protection of items of industrial production, matter-of-factly concluding that MP3 users are thieves or robbers. But think back for a moment to the noble conception of authorship rights existent during the era of ancient Mediterranean civilization, when the dissemination of knowledge was considered to be an extension of human character and a part of freedom of speech, and when no one talked about money! Putting it in an extreme form, why should we of today be bound by the values of the mere past two centuries and deny the value of the totality of what preceded?
以MP3為例，為什麼MP3的出現會受到這麼大的鼓舞？因為它具有充分的分享性，但資訊社會的這項特色卻也衝擊到了既有世界很多的利益與價值觀。要制定相關的政策前，其實應該先考慮：著作權人應該如何收費？是賣資訊光碟來收費？還是透過網路下載來收費？是向網際網路服務提供者ISP（Internet Services Provider）？還是向製造者付費？這其中有很多不同的商業模式。但將這麼複雜性的選擇套到現有的社會價值觀，商人卻沒有太多興趣花時間來推動立法，而直接訴諸舊有的價值或道德觀來維護其利益。因此現代人仍受到工業化以後保護著作物之法律觀的影響，會直接認為這些MP3用戶是小偷、強盜；但我們回頭想想地中海時代的著作權概念是多麼高貴，認為知識的傳播是一種人格的延伸、是言論自由的一部份，沒有人談錢！極端一點說，為什麼我們今天要用短短近兩百年的歷史價值觀來否決過去的一切？
Here in the East we often say, after all was it Confucius who was great? or his 72 disciples who were great? or the person who later wrote down the Confucian Analects who was great? If Confucius had demanded royalties, we wouldn't have the Analects today. But with the firm establishment of the value concept [of knowlege] developed over the past two centuries, and, with the advent of the powerful concept of knowledge as a commercial commodity established through international-scale legislation, the moral dimension [of sharing knowledge] has disappeared, the joy of sharing has disappeared, and inter-human relations seem to have become contentious, rife with divisive barriers.
在東方，我們常講，到底是孔子偉大還是他七十二個弟子偉大、或是後來寫下論語的人偉大？如果孔子要收權利金的話，今天就不會有論語出現。但在過去這兩百年來的價值觀建立得那麼堅強，它透過國際性的立法，建立知識有價的強力觀念，相對的，它的道德性沒有了，分享的喜悅也沒有了，人與人的關係好像是在挑釁，彼此充滿了界限。
Quite clearly, judging from the public's reaction to MP3, and as demonstrated by the process of establishing an international copyright legal framework, we have already thrown away the opportunity to handle the problem through establishment of a new [philosophical] policy approach and have no intention of changing the modus of information exchange of the past two centuries; but at the same time we're confronted with the reality of the inadequacy of laws and are forced to still somehow come up with a solution. Given this predicament, urging self-constraint has become an imperative. It may be foreseen, however, that the approach of leaving it to those who stand to reap the greatest profits to demand self-constraint on the part of those who are relatively weaker, poorer or destitute, will not achieve the desired effect. For example, students are very reluctant to spend money; so, given the choice of spending NT$ 350 [to buy a CD recording] or employing their own knowledge to manipulate a computer a little and get the [same digital] information, they will of course choose the latter option. Basically, the ability of information controllers to exert decision-making, controlling power over information receivers is in no way at variance with the price-value theory accompanying the early development of capitalism theory. Therefore, in the process of urging self-constraint, if we cannot at the same time promote the establishment of a balance of rights and benefits between the two, there will ultimately be no solution, but those with a grip on power will witness the rise of populist movements, in the course of which there may occur much irrationality and turmoil, and in the end society will be forced to resort to a [strictly] legal approach to resolving problems.
很顯然的，從MP3的社會反應來看，正如當前國際間著作權法的建構過程，我們已經放棄了重新建構政策的機會，也不想改變近兩百年來的交易模式，或人與人互動的方法，但面對法律不彰的事實，我們卻仍不得不去設法解決問題，從而在兩難之下，鼓吹自我節制即成為必要。但是可以預見的是，讓那些擷取最大利益的人來要求相對弱勢或較貧乏、窮困的人去自我節制，往往也無法達到預期效果，例如學生就是很捨不得花錢，因此將三百五十元的價格（一般光碟市價）拿來 和 在電腦上利用自己的知識操作一下就可以獲得的資訊 來比較，一定會選擇後者。基本上，握有資訊掌控權者可以決定、控制資訊接受者，這與早期資本主義理論發展下的價格理論沒什麼兩樣。所以在鼓吹自我節制時，如果不能同時促成兩造權益之平衡，最後還是無解；握有權利者最後會看到庶民主義的興起，裡頭甚至可能會夾雜很多非理性與動盪，最終社會還是必須選擇用法律來解決問題。
Further examining the meaning of MP3, the presently [most popularly] used INTERNET EXPLORER and LINUX [Internet-access programs] represent different modalities. A fee must be paid for each duplication of the IE program, and a fee must likewise be paid for each subsequent IE upgrade. [Microsoft] has employed the IPR protection legal framework developed over the past two centuries to create its [Internet-access] empire. With LINUX, by contrast, the emphasis is on sharing, publishing that program on the Internet for free use by everyone, without concern for copyright benefits but instead seeking compensation through provision of service. And hasn't LINUX achieved excellent results in this way? In fact, the LINUX model perhaps presents us with an excellent opportunity indeed, leading us to contemplate exactly what the [philosophical] policy framework of this modern-day information age should be. Currently, we educate everybody only in the matter of how to protect intellectual property and don't educate everybody in the matter of how to go about sharing in order to release the power of diversification of individual values and in this way reap benefits.
再從MP3的意義來看，現在IE與LINUX有不同的模式，IE每一份複製都要付費，而且後續的更新也要付費；它是用過去兩百年發展出智慧財產保護模式來形成它的王國。而LINUX 強調的卻是分享，將程式免費放在網路上讓大家來使用，完全不管版權問題，而朝向以服務來收費，LINUX以這種方式不也得到很好的成果？其實LINUX這種模式或許正是一種很好的機會，讓我們來思考在現今資訊時代的政策模式究竟應該如何。目前我們都是教育大家怎麼保護智慧財產，而不是教育大家怎麼去分享，發揮個人價值的多元化並透過這樣來獲取利益。
Should a knowledge-based economy, after all, concern itself most with products or with the value of human beings? Due to the fact that everyone is confused about this, it has led to the situation wherein conventional business theory and management models are unable to adjust to the needs of a knowledge-based economy, yet it is easier to try to deal with problems by falling back on the concepts of the old industrial economy. Perhaps after a period of time, we shall yet have opportunities for change, since the LINUX model, at least, has given us a glimmer of hope.
到底知識經濟該強調產品？還是人的價值？因為大家都不太清楚，所以引到知識經濟模式中，傳統商業理論、管理模式都無法跟上，還是必須回頭依據商品經濟的概念來處理問題比較容易；或許經過一個階段後，我們還會有機會改變，因為LINUX的模式起碼給了我們一些希望。
In truth, the erection of a legal system must be based on a cultural foundation. In our present endeavor to establish laws to guide development of the information society, we must therefore embody in them the cultural values most crucial to this information-based society of ours, and they must additionally be global in nature, as only such laws have the power to express the maximum value of law.
其實建立一個法律制度一定要有一個文化的背景，今天我們要訂定法律來引導資訊社會的走向，就是要把這個資訊化社會的最大文化價值實現來，而且必須是全球性的，這樣的法律才算發揮了它最大的價值。
The end
全文完
Compiled and edited by Tina Lee/Translated by James Decker
編輯李美儀/英文翻譯曹篤明
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