Legal Minds on Information Law

Cat: ECO
Pub:2017
#: 1707b

Koichiro Hayashi (林紘一郎)

17609u/18227r

Legal Minds on Information Law

情報法のリーガル・マインド

0. Preface:
1. Features of information and its legistration:
2. Information as an object of legal dicipline:
3. Barcodes in the stars:
4. Future of the information law:

0. 序文:
1. 情報の特質と法のあり方:
2. 法的規制の対象としての情報:
3. 品質の表示と責任:
4. 情報法の将来:

Résumé

Remarks

>Top 0. Preface:

• The author is a specialist of various aspects of information, having wide experiences at private and academia, who is one of the best storytellers of the information society.
• The author proposes and also is worries about the present situation of the approach and practice of the Information Law in Japan.
• There was a workshop of introduction of his latest publication of the book on 12 May, 2017 at Glocom of IUJ.

0. 序文:

>Top 1. Features of information and its legislation:

• A bird's eye view of the Information Law:
  • Paradigm-shift approach rather than incremental improvement approach is needed.
  • Since the beginning of 1970s, the advent of information society has been anticipated.
    • First, the term of 'Information Society' could not be accepted; translators advised to use 'information-oriented society' or 'information-intensive society.
    • But now the term was accepting; even EU established 'Information Society Promotion Office, ISPO) in 1994.
• What should be subject and object of legal action related to the information?
  • In the case of tangible materials, the subject should be either an individual or corporation.
    • What about the case of intangible materials, such as net transaction, action of robot or IoT terminals?
    • The object of robot could be embodied or incarnated as an individual? Who will be responsible when it became out of control?
    • In Information Society, the net transaction could not be exceptional, but major.
• Layers of Information media & message: 'Media is NOT message'

  • Contents Layer (Ct)	Message
    Conduit Layer-1 (Cd): Facility & Service	Media infrastructure
    Conduit Layer-2 (Cd): Right of way

• Floridi (2014): 'The Forth Evolution'
  • Staged recognition of the world:
    1. Heliocentric theory by Nicolaus Corpernicus (1473-1543)
    2. Evolution theory by Charles Darwin (1809-1882)
    3. Subconsciousness by Sigmund Freud (1856-1939)
    4. Turing machine (AI) by Alan Turing (1912-54)
  • The concept of Distributed Autonomous Corporation (DAC); like an avatar
    • Both human and organization are information processors in handling programs or IoT.
• Ownership-centric society of rare things.
• People or organization who own means of production are decisive, as well as geographical advantages due to the limit of traffic and communication availability.
  • Ownership by a state (socialism) could not function well due to the limit of centric computation capacity.
  • Expansion of chasm; ownership divide between the haves and the have-nots is expanding in 21C.
• Problems of ownership centric society:
  1. Inhibition of public interest:
  2. Individuals isolated society
  3. Self decision on life information (Eg. Organ transplant)
  4. Ownership of corporations; greed capitalism
  5. Range of fair use of intelligent property
• Information could not be owned:
  1. Exclusiveness; exclusive use
  2. Economic features of information, which can be shared.
  • Lack of competition.
  3. Right of possession
  4. Right of transfer
• In Japan, real right and credit right are strictly distinguished.
• Information society: emphasizing from ownership to utilization.
• Share economy or sharing economy; or fee economy; like OSS.
• What is information?:
• Material, energy and information are controlled in the form of broad sense of information. (T. Nishigaki)
  1. Raw information; recognizable and observable
  2. Social information; observed, extracted, and described by an observer.
  3. Popular information: uniformly interpreted, patterned and socially shared.
• Phase transition of information: like three states of matter.(>Fig.2)
• Data, information and knowledge are transferable in a certain condition.
• Data and knowledge are rather independent, but information varies much (having uncertainty; thus having some value).
• >Top Information should be evaluated its certainty and usability.
  • Restriction of 'freedom of speech' needs to clarify 'less restrictive alternative (LRA)' considering 'time, place and manner.'
  • Similarly, information could be changeable by 'time, place and manner.' (=uncertainty of information)
  • Also deviation among 'average reasonable person (ARP)' varies much than the case of tangible material.
• Hypersensitivity of the initial value:
  • Massive and continuous transactions using network.
• Incomplete database of judicial precedents, with insufficient retrieving capacity as well as access restriction by the general public.
• >Top Addressee and self-responsibility:
• Unregulation policy means to emphasize more self-responsibility, who have higher information literacy. The right to be forgotten or the right of erasure.
  • Balance between defamation of character and social whole benefit.
  • Expansion of the injunction system could be practical.
  • In the case of tangible material: such mechanism of restoration or compensation for damages could be effective.
    • But in the case of information, injunction system could be more preferable.
• Right of deletion:
  • Common carrier, ISP or OTT (Over the Top) may have the right of deletion, considering secret of communications.
• Cyber Law and Information Law: (>Fig.3)
  • 'Information Law' should be important to control the information.
  • It is not intended to control cyber space or the internet
• Space & Time of the Internet:
  • Moor's Law (1965): Degree of integration of CPU; doubling every 18 months.
  • Dog year: 7 times quicker than human
  • Mouse year: 18 times quicker than human.
    • Protection period of copyright: 50 years after the author's death; will be actually 350 dog years or 900 mouse years.
    • Such protection year should be shortened to 7 year. (50 divided 7)
  • Long Tail Phenomenon; by Anderson (2006); or 20:80 magic number theory.
  • Free Flow of Information (FFI) is essential in the Information Society.
    • Terrorists' organizations mostly use the Internet; those organizations tend to be autonomous, distributed and collaborative ones, affinitive to the Internet.
    • The value of FFI could either supersede a nation or subject to sovereign right.
  • Concept of Cyber-Physical System

1. 情報の特質と法のあり方

• 情報社会の用語
• 法律行為の主体と客体
• 有体物の場合の主体は個人･法人
  では情報の場合は？
• FloridiによるInforg論
• Two-storied structure of a corporation: (Fig.1)

• 所有権万能の弊害
  1. 公益阻害
  2. 無縁社会
  3. 生命情報の自己決定の規範
     (臓器移植など）
  4. 強欲資本主義
  5. 知的財産のフェアユース
• 情報の経済的特性:
  民法は無体財には適用しない。
  情報財は知的財産の扱い。
  1. 排他性
  2. 競合性
  3. 占有
  4. 複製容易･劣化なし
  5. 流通の不可逆性
  6. 削除の効果限定的
• 物権には排他性が原則。物権の制限は例外→Fair useの規定なく、あくまで著作権の制限の扱い
• 日本では、物権と債権を峻別
• 情報の定義 (西垣 2004):
  物質･エネルギー･情報も広義の情報で規律。
• 情報の相転移: (Fig.2)

• 救済措置:
  • 削除命令
    忘れられる権利
  • 差止命令
  • SA (Syste Administrator):
    scienter (悪意)の立場
• インターネットは非規制
  • ISP等の責任
  • 名宛人と自己責任
  • 非規制政策は、自己責任の強調でもある。
• 刑事罰の有効性と限界
  • 情報窃盗の問題点
  • 実態と手続
  • 事前(proactive)と
    事後(reactive)
  • 初期値過敏性:
    Butterfly effect
    • Default設定効果
  • Opt-in or Opt-out
  • Shrink wrap agreement
    Click wrap agreement
• Cyber Law & Info. Law: (Fig.3)

• >Top Civil Code (Japan): 民法第93-96条
  • L1 is described in the Civil Code as 'principle freedom of contract' (契約自由の原則) (Art. 93-96): In the case of expression of intention, expression matters.
  • Misstatement may not be asserted against a third party without knowledge. (Art. 94)

• Art. 93 (Concealment of True Intention): (心裡留保) The validity of the manifestation of intention shall not be impaired even if the person who makes the manifestation knows that it does not reflect his/her true intention; provided, however, that, in cases the other party knew, or could have known, the true intention of the person who makes the manifestation, such manifestation of intention shall be void. Art. 94 (Fictitious Manifestation of Intention): (虚偽表示) (1) Any fictitious manifestation of intention made in collusion with another party(ies) shall be void. (2) The nullity of the manifestation of intention pursuant to the provision of the preceding paragraph many not be asserted against a third party without knowledge. Art.95 (Mistake): (錯誤) Manifestation of intention has no effect when there is a mistake in any element of the juristic act in question; provided, however, that the person who made the manifestation of intention may not assert such nullity by himself/herself if he/she was grossly negligent. Art. 96 (Fraud or Duress): (詐欺又は脅迫) (1) Manifestation of intention which is induced by any fraud or duress may be rescinded. (2) In cases any third party commits any fraud inducing any person to make a manifestation of intention to the other party, such manifestation of intention may be rescinded only if the other party knew such fact. (3) The rescission of the manifestation of intention induced by the fraud pursuant tot he provision of the preceding two paragraphs may not be asserted against a third party without knowledge.

>Top 2. Information as an object of legal discipline:

• Information Law contains two essential principles: (>Fig.1/2)
1. Free flow of information (FFI)
2. Fair use of information (FUI)
• This means that FFI shares major portion with some exceptional portion which is an object of legal discipline. Thus the coverage of this law is actually narrow.
• In a country of written law, an event written in a law is regarded as more important.
  • But the freedom of speech is stipulated only in the Constitution; no mentioning should be more essential.
  • The corners of Ⅰ, Ⅱ, Ⅲ, Ⅳ of Fig.1 show legally disciplined objects; the area which is exceptionally controlled by law is narrower; whereas the central oval area which represents FFI and FUI is wider area.
  • Personal data has both features of Ⅰ and Ⅱ (will be considered later)
• >Top FUI=Exception of exceptions:
  • FUI is an exception of exception of copyright. But this is applicable to other information rights.
  • Regarding to parody of a certain works; in Japan parody is categorized as a quotation of the original work (1980). But actually parody adds some new satirical meaning to the original.
• >Top Defamation, or calumny: (名誉毀損)
  • Compensation for damages caused by defamation needs to be proved:
    • Honor is defamed.
    • It is not a legitimate act.
    • There is a willful negligence.
    • There is an actual damage.
    • There is a causal relationship.
    • But the judgement should consider the balance with social benefit.
    • In US, defamation to a public figure requires 'actual malice' of the defendant.
  • The structure of defamation resembles the case of FUI.
    • Free of speech is the principle, but defamation is an exception, but which should consider public benefit as an exception of exceptions.
• >Top Free and Secure Flow of Information:
  • National sovereignty precedes FFI, particularly in Russia, China, and other emerging countries, which required 'Free and Secure Flow of Information' in Group of Government Experts (GGE) in 2015.
    • The concept of 'Free and Secure' is ambiguous, and there is no judicial precedent.
    • Fair or unfair should be judged without political consideration.
    • As a slogan, FFI+FUI is the most preferable, which counters not only to the claim of emerging countries, but also to the greedy capitalism or excessive pro-patent policies.
    • The trend of OSS movement is a good precedent case of FFI+FUI.
• Secondary products: (>Fig. 3)
  • Another copyrighted material: referring to or borrowing idea of the predecessor, and making as another material.
  • Parody: could be independent materials, but easily presumed the reference with the original; also could be infringement of identity preservation.
  • Derivative material: getting approval to use the original material, and make derivative material.
  • Quotation: quoted partly as it is.
• Lesson from Napster problem:
  • Napster is P2P music distribution software, swayed over the minds of people in 1999, but bankrupted by the lost case of copyright law in 2003.
  • Since then, US has learned the lesson that excellent business model should be developed by getting necessary license or changing the rules.
    • To nurture and encourage creativity, it is also needed to find the significance of changing the old rules; to emphasize more market-oriented value in the future than keeping the vested rights by the current juridical rules.
• >Top Google Books: the case of copyright infringement or fair use.
  • In 2005, a group of authors and publishers brought a lawsuit against Google for infringement on the copyrighted works.
  • Google countered that it was a fair use and equivalent of a card catalog in the digital age.
  • In 2015, Authors Guild filed another appeal against Google. Google won the case on the argument that they were not showing people the full text but instead snippets. The court stated they did not infringe on copyright laws, as they were protected under the fair use clause.
  • Again in 2016, Authors Guild tried to appeal the case to be considered by the Supreme Court, but the case was rejected, leaving the Second Circuit's decision on the case intact.
  • Such cases clarified that importance in the new digital age as it affected other scanning projects similar to Google. (Scanning books by 'Opt-out' method)
• Protection of Personal data and Privacy:
• Jurisprudence looks like a clinical study, not like physiology or epidemiology; in particular, a study of information law looks much undeveloped.
• >Top Interests protected by law (=Rechtsgut); 保護法益
• should be maintenance of trust relationship between the sender and receiver of information.
1. Protection of data and privacy
2. Relationship with public power and private individual
3. Understanding by sensitivity and rationality
• >Top What is 'Personal information (data)' or 'Privacy'?:
  • Unbandling into three categories:
• The author's comment:
  1. Personal data and Privacy protection are essential different concept, though overlap each other in some part; should be unbandled.
  2. Information as an intagnile asset shoud be treated as 'relations between the parties concern'.
  3. Property rule of personal data should be restricted to the relation between public organization and the individual.
  4. Regarding to private data protection, liability rule shoud be applied, for which, Corporate responsibility, in particular, should be paid more attention.
  5. Privacy protection mainly depends on the individual feeling, while personl data could be treated as Shannon like information theory; there two shoud be unbandled.
  6. Privacy infringement by leakage of private data need to accupulate epidemiological knowledge.

2. 法的規律の対象としての情報:

• 情報法の２大原則:
  • 情報の自由な流通 (FFI)
  • 情報の公正な使用 (FUI)
• FFI $ FUI: 例外の例外 (Fig.1)

• FFI & FUI relationship: (Fig.2)

• Parody, Derivative, Quotation: (Fig. 3)

• 事前権利付与 or 自己救済: >下表
  • 権利≒物権≒事前権利付与≒Property rule
  • 利益≒債権≒事後利益救済≒Liability rule
• Secret or Confidentialの違い
  • Confidential <confide <L. confidere, have full trust
    
    
• 米国でのフェアユース規定: >下表
  • Google Booksケース:
• 結局Opt-out方式でのデジタル化推進
  

• プライバシィの分類 (米国):
  <the state of being free from public attention
• 保護法益 (Rechtsgut):
  法が特定行為の規制によって保護、実現使用とする利益

• 個人データとプライバシィ:

• フェアユース (米国)
• 差止請求権付き行為規制

• >Top Fair Use in US Copyright Law: フェアユース(米国)

• Notwithstanding the provisions of sections 17 U.S.C §106 and 17 U.S.C. §106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (使用の目的および性質)
  • the nature of the copyrighted work; (著作物の性質)
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (利用された分量)
  • the effect of the use upon the potential market for or value of the copyrighted work. (著作物の潜在的市場)
• The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

• >Top Regulation with injunction claims: (Prior grant, 事前権利付与 or Post remedy, 事後救済)

1. Prior grant of rights, 事前の権利付与

• Copyright law
• Patent law

• elimination of interference
• claim for damages
• licensing
• requirement to duly assert against third parties

• ditto
• Unfair competition prevention law

• injunction relief
• claim for damages

• Civil code

• claim for damages

• >Top Classification of Privacy in US; プライバシィの分類 (米国)

• Secret of communication belongs to this.
• Evidence not adopted (exclusion principal)

• This is physical space. (The above is non-physical.)

• may conflict with defamation

• Different from defamation, but actually may conflict with it.

The other makes a profit by using my name or affinity without permission.

• Copyright & Publicity in Common Law
• Publicity in Civil Law

Property right (in US)
Personal right (in Jp)

• >Top Classification of data (by Nawa, 2008) データの分類 (名和)

• *1: Home address is usually excluded because of too much recent remittance fraud.
• *2: Token or identification became particularly important in digital age; without such token or ID, it is equivalent to non-existence.
• *3: Policy of protection either by opening or by concealing.
• *4: Whether or not sensitive information
• Collection of many fragmental information as Big Data can be identifiable information. In digital age, data analysis or data mining could produce another value.
• Anonymous processing data; which could be identifiable by matching with external data (Profiling).
• Pre-regulation is generally difficult because of uncertain of information.

>Top 3. Display of quality and guarantee:

• Japan Quality:
  • Formerly JIS Z8101 defined QC as a system to produce goods and services economically to meet with the customers' demand.
  • This definition was superseded to ISO 9000 series, which seems, defined relatively to make light of customers' demand.
  • Such Japan quality has been lost during the lost two decades, or became 'over specification' neglecting customers' demand.
• Deterioration of traditional Japan Quality, because:
  • Full participation is getting difficult; diversified employment such as permanent staff, temporary staff, dispatcher employee.
  • In emerging market, high grade and high price product could not be competitive any more.

3. 品質の表示と責任:

• 日本品質とは
• 日本品質の劣化の理由

• >Top History of Japanese QC: (stayed 1946-50 in Japan)
  • ... We must credit the three CCS engineers (General MacArthur's Civil Communications Section) engineers, Homer Sarasohn, Charles Protzman, and Frank Polkinghorn (in order of their arrival in Japan) with having been the vehicle that brought manufacturing know-how to the Japanese Electrical Communications Equipment Manufacturers.
  • However, we must give credit to the Japanese managers for having learned, even tough few spoke competent English and few American companies wanted to set up plants or affiliates in Japan. ...
• Criterion (基準) and standard (標準):
• Various securities; Device, computer, network, contents, and quality.
• How to confirm Quality Security of intangible products:
  • By Quality Assurance Mark: Global standard (JIS, or JAS (Japan Agricultural Standard), etc.)
  • ISO9000, ISO14000, ISO27000, then ISMS (Information Security Management System)
    • In US, Quality Assurance and Quality Management are different.
    • ISMS requires to maintain confidentiality, integrity, availability, authenticity, accountability, non-repudation, and reliability.
  • Qualifying Examinations: professional licenses for government officials, lawyer, Certified Public Accountant, etc.
• >Top Commitment Responsibility: (>Fig.1)
• To indicate one' intention by corporation to the general public.
  • Cf. 'estoppel' (禁反言)
• This concept should be stipulated in the written law, because:
  1. Civil law (Continental law) tends to stipulate in details: principles stipulated in the Civil Code is not enough.
  2. Intention of the Civil Code is premised to address an individual; the intention addressing the general public is needed, together with the intention of B2B and B2C.
  3. It is now increasing the cases caused by unfair or illegal acts by corporation.; responsibility of 'trustee' for the expectations of 'confiders'.
• From 'Standard' to 'Rule':
• Japanese style management:
  • Difficult to maintain in less-populating society like Japan.
  • Digitalization promotes flatter organization, which means less needs for middle management.
  • Shrinking market in Japan promotes more globalization, which means more globalized management style needed, such as specialized management like CXO (CEO, COO, CFO, CIO, CISO, etc.)
  • Abuse of documentation=visualization; 'Document it!, but in poor contents.
• Internal Control (内部統制):
  • It is a process which should be fulfilled the following four items:
    1. Effectiveness and efficiency of the business
    2. Credibility of financial statements
    3. Compliance of laws and ordinances
       1. Conservation of assets.
  • Corporate governance, or External Control (外部統制):

• To err is human.
• 'Red team': an independent group that challenges an organization to improve its effectiveness.
  • Residual right: Check & balance, as well as Credibility
• Various responsibility: (Fig. 1)

• 内部統制の目的:
  1. 業務の有効性と効率性
  2. 財務報告の信頼性
  3. 法令等の遵守
  4. 資産の保全
  
  

>Top 4. Future of the information law:

• >Top Homo economicus; humans as consistently rational: attempts to maximize utility as a consumer and profit as a produce.
  • Rational Expectation hypothesis (RATEX) or error-prone man
  • Cf.: Homo reciprocans (which emphasizes human cooperation)
  • Self-contract and Representation of both Parties; legally prohibited.
• By jurisprudence:
  • 'Reasonable' instead of 'Rational'
  • Confidence and non-confidence; fiduciary relationship
• Structure of Trust Law: (>Fig1)
  1. Settlor (Truster) assigns and trust to manage his/her property to Trustee.
  2. Trustee uses the property for the benefit of Beneficiary.
  3. Note that the property was formally transferred to Trustee. Though there is no contract between Trustee and Beneficiary, Trustee makes utmost consideration for Beneficiary. (Trustee is paid a certain management fee from Settlor as expense of performance.)
  4. Thus, property (narrow meaning) on Common Law was vested to Trustee, while property as 'Trust Beneficiary Right' was vested to Beneficiary.
  • These mechanism was developed in since middle age of UK, reflecting single inheritance by the eldest brother.
• Erro-prone person:
  • In the modern age, an individual is assumed as 'rational or reasonable person.'
    • But actually an individual is error-prone person.
  • The ethical doctrine: human nature is fundamentally good or evil.; it may be fundamentally 'weak.'
    • human being tends to yield to temptation.
  • >Top Organisms adapt well enough to 'satisfice'; they do not in general 'optimize.'
  • Following three approaches are effective:
    1. Cross checking: 'Red team' as the last opponent in an organization.
    2. The science of failure
    3. Information sharing
• >Top Creative Commons:
  • Attribution (著作権者表示; BY)
    1. No Derivatives (改変禁止; ND)
    2. No Commercial (非営利; NC)
    3. Share Alike (継承: 改変可だがPublic Domain; SA)
  • The combination of the three patterns makes 6 patterns of Creative Commons.
• Metadata: a set of data that provides information about other data.
  • Descriptive metadata; title, abstract, author, and keywords
  • Structural metadata; types, versions, relationship of digital data
  • Administrative metadata; when & how created, type or technical information, and who can access it.
• >Top Forensic: scientific tests or techniques used in connection with the detection of crime.
• Open Government: the citizens have the right to access the documents and the proceedings of the government to allow for the effective public oversight.

4. 情報法の将来:

• 近代社会のHomo economicus:
  • 経済合理的な判断か誤り易い個人か
• Structure of Trust Law (信託法): Fig.1

• Creative Commons:

>Top Contract & trust

Prohibition of conflicts of interest.
Many duties of trustee (diligence, loyalty, confidentiality, etc.)

Comment

• I believe this quoted translation from Dr. Hayashi's book would be a 'fare use', except including incomplete translation. Such incompleteness might be a kind of parody or even 'defamation.'
• On the back cover of this book was given the expression of "With the compliments of ... 2017.5.12", literally 'bestow a favor' and 'existence.' (恵存).
• Such difficulty in translating jurisprudent contents could be unavoidable to some extent, probably because laws are closely related to the culture expressed by the local language.

• 著者の本書の引用抄訳は、不完全な訳が含まれていることを除けばフェアユースに当たると信じる。不完全部分はパロディかあるいは名誉毀損の一種かも知れぬが...
• 本書の裏表紙には"恵存...2017.5.12"と書かれている。
• 法学の内容の翻訳の難しさはある程度は避けられないのではないか。これはおそらく法律はその言語で表現された文化と密接に関連しているからであろうか。