Study On The Exception Regime Of Technical Protection Measures

Technological protection measures have become an important topic for thecopyright protection mechanism in the digital environment, The division of the publicdomain and proprietary domain is affected due to the adoption of technologicalprotection measures, as technical protection measures are inducted into the range ofthe copyright protection, the influence on the regime such as real use, which is onbehalf of public interest turn out to be profound, it is necessary to combine the actualneed of the development of content industry, and with the improvement of theexception regime, so as to maximize the effect of the technical measures, as well asthe legal protection mechanism.The original copyright interest balance pattern has been broken Under the digitalenvironment, the arising of technological protection measures, which is one of theprivate relief means, to some extent, has moderated the conflict of interest betweenthe copyright owners and the users, but after technical protection measures areinducted into the range of the copyright protection, the uncertainty of the rightboundary, and the business model of “Technology+Copyright law+Contract” haslargely restricted the user’s free to draw lessons from other intellectual achievements,which is allowed according to the purpose of the real use, and leaded to the negativeimpact on the copyright law protection regime, such as the object range and duration,so there is the need to improve the exception regime of technical protection measuresto cope with the challenges series caused by the technical reform.Technical protection measures, which is different from copyright and relatedrights but this special regime is also closely combined with the latter, is protected bythe copyright law, to be correspondingly, legal protection of the technical measuresshould also be incorporated into the range of the copyright restriction system, it isnecessary to pay attention to the guiding role of the principles in perfecting the regime.Based on the particularity of the digital environment, the influence factors of theexception regime on technological protection measures should have new standard,which is different from the traditional environment, and it is needed to take theprinciples of balancing of interest, risk-efficiency and system coordination for theevaluation criteria or standards, in order to ensure that the new exceptions canintegrate into the existing system. Internet treaty, EU Copyright Directive and the legislation of the United States,Australia, Japan and other countries or regions have incorporated technologicalprotection measures into the scope of the law protection, but as to the definition oftechnological protection measures, whether or not to regulation and regulation on the“direct infringement” or “indirect infringement” or both of them are differ from onecountry to anther. The updating mechanism in the DMCA of the United States, andthe coordination between copyright Law and contract law in Australian, as well as thespecial requirements on the private use, and the double protection model of copyrightlaw and the Anti-unfair Competition Law in Japanese, which can all offered usefulinspiration for the improvement of our country’s exception system of technologyprotection measures.Our current copyright provisions on technology protection measures and theexceptional regime are inadequate on the logic and system level, the definition oftechnological protection measures are not very clear, and lack of a flexible mechanismto deal with the striking caused by technological reform and to meet the publicdemand, nor the regulation mechanism in order to solve the bad effects by the abuseof technical protection measures. With the consideration of the effect on the rightstransfer and interest allocation caused by the rising of cloud computing technologyand its application, it is needed to take action into comprehensive consideration andprospective legislation, from the opening movement, the meaning and the limitationsof the organization for collective administration of copyright system and practicalfunction, which leading to save the legal protection for technical measures, and withthe introducing of the new mechanism and regulation mechanism, with the aim ofpromoting “development of the industry” and “scientific and technologicalinnovation”, at the same time, to protect the public interest effectively, to achieve theultimate goal of the copyright law for better.