Study On New Legal Relationship Framework Of Anti-circumvention Provisions Of Copyright Law

For copyright owners,the development of information communication technology is both an opportunity and a challenge.Works can be used at low cost and high fidelity,at the same time,the risk of copyright infringement increases accordingly.Technical protection measures is a method for copyright owner to change this passive position.The World Intellectual Property Organization(WIPO)requires Member States to provide effective legal protection of technical protection measures,and both China and the United States have enacted anti-circumvention provisions in their respective domestic laws.Its legislative model is not to add an access right in the copyright law,but to prohibit others to circumvent technical measures or to provide tools or services for them.Copyright owners can use technical protection measures to control the access of a work,which was not subject to the exclusive copyright scope.Does that mean the anti-circumvention provisions build a new legal relationship framework?How does this framework integrate and coordinate with traditional copyright law system?The anti-circumvention provisions of copyright law have aroused a theoretical debate on its legal relationship and its nature.Domestic scholars put forward the theories of "the right of prohibition","the access right" and "the inherent right",while scholars in the United States put forward the theories of "cause of action","the access right" and "power-lialibity relationship".The two countries' "access right" theory is roughly the same,which establish their logical foothold in users' duty not to circumvent technical measures.Where there is a duty,there is a right.This is why some scholars believe there is an access right."The right of prohibition" theory is similar to the theory of "cause of action",and both require a reasonable relationship between the anti-circumvention liability and the copyright infringement.The difference between "the inherent right" theory and "the access right" theory in our country is that the source of rights belongs to natural rights or legal rights.And the foreign "access right" theory analyzes the legal relationship between copyright owners and the users from the static perspective while the "power-lialibity" analyzes it from the dynamic perspective.Then,this paper will focus on the new legal framework created by the anti-circumvention provisions in copyright law.Throughout various doctrines,"power-lialibity" theory is more rational and explanatory.Hohfeld's "bundle of rights"theory can help us analyze the fair use doctrine in-depth.Under this theory,the users have the privileges rather than rights to use works because there is no legal relief when copyright owners take technical measure to hinder these privileges.With the theory of "bundle of rights" as the analysis tool,we can see that the anti-circumvention provisions establish the dual legal relationships between the copyright owner and the users.One is the extension of the traditional copyright legal relationship framework,and the other is to give the copyright owners the power to change the users' legal position.This power can be used to change the original"no-right-privilege" relationship into a "right-duty" relationship between copyright owners and users.The relationship between traditional copyright law and anti-circumvention provisions needs to be further integrated.Firstly,the fair circumvention in anti-circumvention provisions is insufficient and we need to extend the other fair use types to the anti-circumvention provisions with restriction.On the one hand,it is necessary to distinguish the types of technical protection measures and the nature of the circumvention behavior.On the other hand,the "fair circumvention" shares the same theoretical basis with the fair use doctrine and we can judge whether the circumvention is fair by taking the following factors into account:the extent of market failure to access works,the positive externalities of the circumvention and the impact to works' market value.Secondly,it is possible that copyright owners abuse their power.The misuse doctrine can be used to restrict the power when the copyright owner takes technical measures beyond the purpose or limit of power.Thirdly,the protection of technical measures may be extended to the public domain by the copyright owner.To avoid the privatization of public knowledge products and for the purpose of the richness of knowledge and information dissemination,the concept of public domain retention should be established to balance the relationship between copyright owners and users.The anti-circumvention provisions,in addition to the exclusive copyright,give the copyright owners new power to control the access behavior of works.At present,the restrictions to the power of copyright owners in law is still insufficient.It is necessary to extend the rights restriction system in the copyright law and civil law to the anti-circumvention provisions,so as to realize the balance between the protection of power and the maintenance of public interest.