Research On System Set-up Of Right Of Communication To The Public Under Digital Network Environment

With the development of digital network technology and the need of copyright protection,WIPO has created the right of communication to the public in moderm sense for the first time in the WCT(WIPO Copyright Treaty).Corresponding to the right of performance,the right of communication to the public is a type of communication right which is suitable for long-distance transmission.Although countries all over the world have recognized the necessity of legislative protection for the right,different countries have different legislative models due to different legal traditions.Among them,the copyright law of China adopts the legislative mode which only stipulates the right of interactive communication.This model cannot effectively solve real-time play and timing playing problems on network and unable to be accurate qualitative of the two kinds of behavior,and this model has dense characteristics of technique,thus making the right too narrow and fragmented to reflect the principle of technological neutrality.Through the analysis and comparison of various legislative models,the legislative style which not only stipulates the right of communication to the public,but also specifically stipulates the two rights of transmiting and making available online is considered the best choice.Right of communication to the public embodies the principle of technological neutrality and provides reserved space of legal regulation for spreading behavior with future technical development.Right of transmiting and right of making available online is to replace the existing right of broadcasting and the right of information on network,which erase the technical characteristics,show the essence of spreading behavior and smoothly solve problems of real-time play and timing playing on network.However,the rights of copyright owners are not absolute,and the right of communication to the public under the digital network environment is no exception.In order to protect the legitimate rights and interests of consumers,safeguard the freedom of public opinion and creation,encourage the development of social value behavior,and realize the innovation and prosperity of culture and entertainment industry,it is necessary to perfect the provisions of fair use,statutory license and compulsory license in the legislative system.Specifically,the questions of whether network teaching can make use of works freely,whether statutory license can also be applied to non-interactive network broadcasting organizations and whether traditional statutory license for making radio recordings can be extended to the network,which are new and brought by the network technology,need to be responded according to the principle of balance of interests.In addition,in the face of emergence of endless ways and situations of work use under the digital network environment,Chinese legislators has been aware of that the current exhaustive mode of the fair use system has been unable to meet the needs of judicial practice,thus a fallback provision of "other circumstances "and provision of "three-step test" are added in the "People's Republic of China Copyright Law(Revised Draft)".This approach deserves affirmation,however,the relationship between the legal situation of fair use and the three-step test should be further specified.At the same time,in order to make the three-step test more operable,it is necessary to adopt "Four Classic Elements" of fair use in USA as a decision fundament when the second step and third step are taken to provide clear guidelines for judgements and prevent judicial corruption as possible.Finally,what kind of legislative mode should be adopted in the digital use of orphans'works is also an important issue of the right restriction system.After comparative analysis,it's thought that compulsory license is an ideal system choice at the present stage of our country.