The Re-adjustment Research On The Technical Measures And Exceptions Of Technical Measures

It is increasingly normal for copyright holders to protect copyrighted works through technical measures in the Internet environment.But it also often creates situations in which public use benefits are squeezed.How to balance personal interest and public interest and avoid the abuse of technical measures has become important issues.At this stage,because the technical measures lack of clarity,openness and flexibility,some questions has been raised,such as extending the time limit of technical measures,expanding the object scope of technical measures,confining the "sales" again,expanding the scope of obligee’s rights and interests of technological measures.This has resulted in excessive infringement of personal interests,infringement of users’ freedom of speech,personal privacy and independent choice,damage to creation and innovation,hindering free market competition,and hindering the development of public cultural undertakings.Due to the inherent non-differentiation of technical measures,it is impossible to distinguish fair use from illegal use,and the rights and interests of technical measures are constantly expanded.The copyright balance mechanism between public interests and creators’ property rights is broken by technological innovation,and the public interests are blocked by the "technological kingdom" of the right holder,and the imbalance of copyright is obvious.Therefore,the public interest should be considered more in the adjustment of technical measures and technical measures circumvention exception provisions.Fair use is an important means to re-balance the public interest and the property rights of creators,and to adjust the provisions of exceptions to technical measures,which is also feasible in theory.In theory,fair use can be used as a reason to restrict the legal interests of technical measures,because fair use is a restriction on proprietary rights,and it is natural to restrict the legal interests derived from the proprietary rights of technical measures.In order to solve the problem of compressed public interests,we can start from three aspects: First,enhance the clarity of technical measures,and suggest to clarify the implementation subject and scope of technical measures.The determination of the scope of technical measures includes two aspects: validity standard and legality standard.Second,to increase the protection of the interests of public use,and put forward suggestions on regulation adjustment,such as no need to prohibit direct circumvention of technological measures and clearly provide exceptions for circumvention means.The third is to set up professional institutions to carry out identification and classification to ensure clarity and public use interests.Professional institutions mainly have two major responsibilities: one is to carry out identification of specific exception cases,and the other is to update the "technical measures exception catalogue".