| Pre-order content(pre-orders)means that members who pay extra cost get access to watch videos that are planing to be released later.With the broad use of pre-order strategy,the presses and customers are critical to it for the unreasonable reduction of rights and interests of membership,in the case of Wu Shengwei V.i Qiyi Technology Co.LTD,the court upheld some of Wu’s claims according to the principle of fairness and the relevant provisions of the Contract Law.The topic of pre-orders triggered a lot of discussion in perspectives of anti-monopoly law,civil law and customer rights and interests protection law,but few studies focus on copyright law.The essence of pre-orders is the application of technological protection measures in copyright.There are four reasons lead to the misuse of technological protection measures:firstly,digital copyright is easily infringed due to the fast transmission speed and lack of material carrier,in order to give it a better protection,the rules of technological protection measures’ anti-circumvention has been established.The rules of anti-circumvention is so powerful that scholars consider it as a ‘super copyright’,while effectively preventing copyright from being infringed,it also causes imbalance between copyright owners and public interests.Secondly,if law doesn’t forbid an action,people can just do it.The definition and judgement criteria of misusing technological protection measures are uncertain and only one type of misusing technological protection measures has been confirmed in the judicial practice,which is not enough to keep misuse of technological protection measures within limits.Thirdly,misuse of technological protection measures is usually a defence rather than an independent cause of action,when misuse of technological protection measures happens,the court will decides that the action of circumventing technological protection measures is exempt from being punished,but such kind of liability is obviously too minor to show deterrence against misuse of technological protection measures.Lastly,copyright is different from normal private rights,it contains public interest confirmed and protected by Copyright Law,rational people are self-interested when they exert private rights,ignoring whether their behavior harms the public interests,such a mindset also leads to imbalance between copyright owners and the public.There are two aspects of limiting misuse of technological protection measures in the business of pre-order contents.Firstly,construct and complete the legal system of technological protection measures.Including but not limited to establish the principle of prohibiting misusing of technological protection measures,clarify the definition and judgment criteria of misusing technological protection measures in Copyright Law,complete the legal system of liability of misusing technological protection measures,establish a regulatory system of technological protecion measures.Secondly,optimize digital copyright transaction pattern and build an alternative platform for the public. |
