The Conflict And Coordination Between Technological Protection Measures And Fair Use

The development of digital technology has made traditional copyright field expand into virtual space.While promoting high-speed circulation of works,it also brings about massive copyright infringements which bother copyright owners.Technological protection measures are defensive means for copyright owners to protect their legitimate rights and interests.The prohibition of circumvention of technological protection measures by the Copyright Law is an affirmation of such means.However,excessive protection of technological protection measures will tip the scales in favor of copyright owners in the digital environment and damage public interests of fair use.Seeking the balance between the interests of copyright owners and public interests requires hard work.This thesis attempts to explore this.The first part combs the evolution of the legislations on technological protection measures and points out the problems existing in the legislations.Although the legislations on technological protection measures has its legitimacy,there is a problem of excessive protection,which is not only manifested in the large scope of the prohibition of circumvention of technological protection measures,but also in the limited anti-circumvention exceptions.The second part elaborates on the conflict between technological protection measures and fair use as well as its consequence.While technological protection measures effectively prevent copyright infringements,they also hinder fair use of works by the public.Fair use is an important system created by lawmakers which is based on the balance of interests.Its function and purpose is to protect the public to make free use at a minimum.However,technological protection measures objectively cut off the way of fair use of digital works.Technology substitutes laws to grant copyright owners a de facto monopoly on works,which restricts free access to information,and may lead to information monopoly in the digital environment,so it needs to be restricted.The third part is based on the analysis of the relationship between technological protection measures and fair use,and tries to explore solutions to the tension.In view of the limited impact of the direct circumvention of technological protection measures on the interests of copyright owners,it may not be prohibited so as to appropriately decrease the protection of technological protection measures.Subsequently,the system design of indirect circumvention is proposed.It is necessary to reserve applicable space for fair use in the digital environment to achieve the consistency and systematicity of fair use.Combining permanent exceptions with temporary exceptions which is learned from the Digital Millennium Copyright Act is of great value as well.This legislative model can clarify the boundaries of copyright and prevent excessive expansion of copyright from reducing the space of public interests.The fourth part puts forward suggestions for the improvement of China's technological protection measures legislations.Through analyzing the status quo of China's legislations,we can see that China's legislations on technological protection measures have problems such as relatively rough regulations,high level of protection,and insufficient protection of fair use.As a developing country with cultural input as its main focus,China should follow the legislative principle of appropriate protection,insdead of adopting excessive protection standards for technological protection measures.Lawmakers should adjust the scope of the prohibition of circumvention of technological protection measures on the basis of constructing a legislative system for technological protection measures.It is suggested that the system of fair use and anti-circumvention exceptions be integrated under the overall framework of the Copyright Law to form a restriction on technological protection measures in order to maintain the balance of interests in the digital environment.