The Conflicts Between Prohibiting Circumvention Of Technological Measures And Fair Use Doctrine And Their Solution

The fair use doctrine has always been one of the important parts of copyright law system,and has maintained the balance between the interests of the right owners and the rights of the users to a great extent to prevent monopoly.In a long period,the fair use doctrine acted like a lubricant for copyright law system,which led the right owners and users to gain mutual benefits and helped the copyright laws of different countries to achieve the policy function of protecting innovation and encouraging creation.However,the development of digital technology has reduced the cost of making a large number of copies sharply and has promoted the dissemination of online materials.But these also brought benefits to the production and dissemination of pirated copies.Facing such situation,many right owners started to pay back in kind by protecting themselves through technological means.To protect this relief pattern,newly concluded international treaties named the abovementioned technological means used to protect copyrighted works “technological measures” and required the contracting parties to provide legal protection for technological measures.Consequently,national laws of different countries started to prohibit unauthorized circumvention of abovementioned means.Although the abovementioned laws and regulations enhanced the protection for right owners,making technological measures the umbrella of works in digital era,too strict prohibitions also affected the fair use doctrine which used to maintain the interest balance between the right owners and the users.Different from traditional legal remedy,technological measures provide pre-protection for copyrighted works,which means even a user wants to fair use a work,he also has to break through the protection provided by technological measures.However,technological measures have not been advanced enough to distinguish whether the actor has the intention of fair use.Instead,the actor will be discouraged from accessing or using the work no matter he is based on infringing intention or fair use intention.Therefore,these laws and regulations rendered the conflicts with fair use doctrine.This dissertation aims to research on the reasons of the conflicts after analyzing the fair use doctrine and the rules prohibiting technological measures,and to put forward feasible solution to the conflicts based on the legislative experience of other countries and combined with the actual situation of our country.This dissertation mainly has the following five parts.Part I mainlydiscusses the causing reasons for fair use doctrine,emphasizing its important role of balancingthe interests of various parties.It is also concluded through analysis that the nature of fair use doctrine is negative defense.Based on above,Part I,combined with the development of digital technology,analyzes the reasons why and the methods how right owners use technological measures to protect their works.It also describes the development process of international treaties and laws of different countries which give legislative protection to technological measures to comply with the demand of reality.On the other hand,because technological measures are not able to open the door for fair use based circumvention automatically,the conflicts between prohibiting circumvention of technological measures and fair use doctrine are therefore generated.Part II firstly analyzesthe different classification of technological measures,and secondly discusses various prohibited circumvention methods.To be specific,technological measures can be divided into “access control technological measures” and “copyright protection technological measures”,and rules prohibiting circumvention of technological measures contain both prohibiting direct circumvention and prohibiting providing circumvention tools.Because of the prohibition on direct circumvention,as long as an actor circumvents technological measures by himself based on whatever reason,he will violate the laws protecting technological measures.It is therefore difficult for an actor to fair use a work with technological measures.For the prohibition on providing circumvention tools,because providing will not constitute an infringement but an illegal act,fair use cannot be its defense.Therefore,both circumvention methods will make it difficult to effectively apply fair use doctrine.Part III focuses on analyzing how to solve the conflicts led by prohibiting direct circumvention.Although the regular promulgation of exemption mechanism can solve this problem to a certain extent,it`s high legislative cost and limited application scope make it unsuitable to be fully introduced into our country.On the other hand,international treaties place no clear requirement on prohibiting direct circumvention,and many countries including America do allow direct circumvention of technological measures.At the same time,because of the technical difficulties,it is difficult for general users to conduct direct circumvention in large scope or to impose serious threats on right owners.Therefore,this dissertation suggests our legislation directly holding tolerant attitude towards direct circumvention to reconcile the conflicts led by previous prohibitive regulations.Part IV focuses on analyzing how to solve the conflicts led byprohibiting providing circumvention tools.To this question,although foreign legislative experience has legislative exception mode and administrative department domination mode,for the former one,the exceptions are limited and the application conditions are rigor,and for the later one,the prior negotiation between users and right owners is the prerequisite of application.Comparatively,the submitting a statement to the provider mode once employed by Australia,which solves the conflicts through providing circumvention tools to specific individuals and abandoning compulsive negotiation procedure,is worthy of the reference of our country.What needs to be explained is that based on the reality of our country,submitting a statement to the provider himself may come across obstacles in practice.Therefore,this dissertation suggests changing to submitting a statement to the administrative department directly.In this approach,the administrative department provides assistance through verifying and filing the formal requirements of the statements,and providing circumvention tools of technological measures to qualified applicants.After referencing to foreign experience,this dissertation suggests applying administration assistance mode to increase the efficiency and reasonability and therefore to decrease the conflicts between prohibiting providing circumvention tools of technological measures and fair use doctrine.The final Part,on the basis of summarizing the full text,comprehensively discusses the two solving approaches of reducing protection level to allow direct circumvention of technological measures and setting up a new mechanism to allow providing circumvention tools to specific individuals.The two approaches aim at prohibiting direct circumvention and prohibiting providing circumvention toolsrespectively.Last but not least,this dissertation puts forward legislative suggestions combing with the spirit of the Copyright Law(Revised Draft for Official Review).