On Restriction Of Communication Right Of Information Network

All the works are achieved on the base of the heritage of intellectual activity andcultural harvest, and are indispensable to the promotion and development of cultureof the whole society as well. Therefore, at the same time when the copyright systemcame into being, the restriction of copyright presented itself with the copyright, onthe dual purpose of inspiring brains production and promoting dissemination andexploitation of works. Making restriction on communication right of informationnetwork, which is a very crucial right to protect the benefits of copyright holderunder the internet environment, is an important way to fulfill the function of thecopyright law under the internet environment.Communication right of information network, given by law to make sure ofcopyright holder's proprietary control of his works on internet communication, is oneof the most important copyright about internet communication. Generally speaking,communication right of information network is considered to be the expansion andprolongation of copyright under the internet environment. Considering the significantchanges of the communication environment, can the restriction of communicationright of information network expand and stretch as same as the right does to theinternet space? If can, how? These are the fundamental problems we should solve.The foundation of the doctrine of restriction of communication right ofinformation network comes down in the one continuous line with the one of thedoctrine of restriction of the copyright, which can both be explained by the theory ofbalancing of interests in intellectual property. Such theory claims that makingrestriction on copyright is an effective way to balance private interests and publicinterests. As a result, we must follow this theory as a norm and foundation whendoing research on problems of restriction of communication right of informationnetwork. The conflict of private benefits and public benefits is even more furious andcomplicate, so the restrict of communication right of information network would bethe most important method to balance the conflict under the internet environment.Fair use, the most important system of right restriction, needs to be refabricatedaccording to the change of communication environment from criterions to articles.According to the and , the limitations of or exceptions to thecommunication right of information network should neither reduces nor extends thescope of applicability of the limitations and exceptions permitted by the . On consideration of the momentous diversification of communicationcondition under the internet environment, the traditional criterions of fair use shouldbe explained and annotated for second time to achieve the balance. The question thatshould fair use extends to the field of digital library is much disputed. My point isthat since the way digital library provides works to public by internet makes essentialdifferences to the traditional works providing measures, and since these differencesdo a lot harm to the copyright holder, fair use should not fall under the scope of fairuse, or the balance may be broken. Besides, there is still something may cause aconflict against fair use. Now that copyright law protects technological protectionmeasures, can people evade or destroy technological protection measures set onworks for the sake of fair use purpose? The text tried to analysis this problem bystarting with the legal attribute of technological protection measures.At the end of the text I tried to discuss the applicability of statutory licenseunder internet environment. Traditional statutory license system is usually appliedthe situation of when neighboring right holder impose works to do new production.To be different from fair use, which focuses on protect the public advantage ofapproach to works, statutory license works to inspire innovation. Since promulgationseems lack of creativity, so it is improper to apply statutory license to communicationright of information network at large. The idea of trying to set statutory license oncommunication right of information network to satisfy the demand of "magnanimitypermission" is doubtful, because many other system, for example, copyrightlicensing, collective administration of copyright, and creative commons license, canbe used to solve this problem. Besides, if we apply statutory license to internetcommunication while other countries does not, we may breach the national treatmentrequired by TRIPS. In addition, to diffuse works on internet in long-distanceeducation for compulsory education or national education programming is consistentwith diffusing works by publish books both in quality and effect. As a result,statutory license on such behavior is acceptable, adjusting a little to accommodate thecharacteristic of digital transmission. As far as compulsory license, which neitherprescribed in the copyright law, nor necessary in our real life, there is no necessity torestrict communication right of information network in this way.