Study On Limitation For The Leagl Protection Of Technologial Measures In Copyright Law

"Technological measures" refers to the efficient techniques, devices andcomponents that are applied to preventing or restricting the browse or appreciation ofthe works, performance and audio-visual products in the absence of the relevantowner’s permission or in providing the works, performance and audio-visual productsto the general public through the information network in the absence of the relevantowner’s permission. Technological measures is a product of the development ofdigital technology, in order to protect the legitimate interests of the copyright owner,international treaties and national legislation has been in different degree oftechnological measures legal protection. However，according to the present situation,the legal protection of technological measures is in a high protection level with fewlimitation. The law restricted public to access or use the works and related objectswhile protecting the copyright owner’s legitimate interests. Technological measuresincreased an "access right" to copyright owners in effect, prolong the duration ofprotection, also limited the fair use. This would be contrary to the legislativepurpose of copyright law, negative to the development of creation, and may causeobstruction to the citizens’ freedom of expression. Therefore, it is necessary toreflect and improve the relevant provisions about the protecion and limitation ontechnological measures in copyright laws and regulations, especially the limitationsystem. It is a problem to prevent the excessive protection of technological measures, andbalance the interests of users and owners. The existing legal countermeasuresmainly used two means, the one, make limitation and exception to anti-circumventionrules of technological measures, the other, promote the communication between theusers and the right owners. Limitation and exception of the anti-circumventionrules, generally appeared as two characteristics: firstly, the quantity of exceptions issmall; secondly, the application of the exceptions has a scope and must meet strictconditions. Many countries, especially in European countries, attempts have alsobeen made in promoting communication between the user and the owners, but the twoparts have been in a fundamental contradiction that the owners hope their work or therelated objects as little as possible to be used freely, while the users desiring thefree-use of the work. However, the coordination process might take more time andcost as capital. Some countries therefore take a third party organization orcoordination mechanism as the mediator or order maker, but the capital is also aquestion.As a developing country, the protection of technological measures in currentcopyright law has reached the highest level in the world with lack of restrictions,which interfered the public use, is not suitable for China’s national conditions.Therefore, the legislation of our country may considered to appropriately reduce thelevel of protection, not to avoid the circumvention of access control measures. Thequantity and type of limitations and exceptions of anti-circumvention rules need toexpand. The National Copyright Administration of P.R.C. may set rules to provisionthe exceptions in every several years to keep pace with the times. Additionaly, in theestablishment of consultative mechanism, the foreign legislation provides goodexperience that force owners a duty to indicate to provide communication channels.Thus, the "avoid notification rules" can be built, the users may apply to theadministrative department when they cannot obtain an authrization.