| On November 11,2020,the third revision of the Copyright Law added the technical measures clause,which is the beginning of comprehensive legislative protection of technical measures for thirty years of the Copyright Law in China.Comparing with the two revisions of the Copyright Law in 2001 and 2010,This new technical measures clause broadens the scope of technical measures protection and,for the first time,includes the exception clause as well as legal liability for indirect circumvention,which not only realizes the interface between the technical measures system and the traditional copyright system,but also combats indirect circumvention,which has important legislative significance.However,there are some issues with the new technical measures,such as the lack of specific provisions on the abuse of technical measures and the criteria for the effectiveness of technical measures,which cause some inconvenience in judicial practice;there is also an overly broad scope of technical measures to combat indirect circumvention,which makes it difficult for individuals to seek help from technical means for reasonable circumvention.In addition,the conflict between technical measures and reasonable use has not been solved,and there is a risk that technical measures will override the reasonable use system.The level of protection of technical measures is high,but it does not meet the needs of judicial practice,and the excessive protection of technical measures is not conducive to the circulation of knowledge and cultural progress.In terms of public interest,legitimate rights and interests under copyright law and the interests of the relator,attention should be paid to the protection of knowledge innovation and fair market competition order,and the provisions of technical measures should be considered within the framework of copyright exceptions to safeguard public interest and legitimate rights and interests under copyright law;at the same time,it should ensure that technical measures are knowable in order to prevent technical measures from becoming a tool for abusive litigation.Therefore,judicial practice should be guided by the value of balance of interests in the restrictive interpretation of technical measures,reasonably determine elements of technical measures,adopt different rules for adjudication depending on different types of technical measures,strictly regulate the abuse of technical measures,deny the legality of bundled sales using technical measures,and adopt the actual blocking criteria to determine the effectiveness of technical measures.For the coordination of the conflict between fair use and technical measures,the regular publication exception system and the special committee system are not adapted to China’s national situation.Distinguish the relationship between different kinds of technical measures and reasonable use,and expand the interpretation of the teaching or scientific research exceptions of technical measures,which can ease the conflict between technical measures and reasonable use on the basis of the existing technical measures provisions. |
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