| Technical measures are the technical means used by right holders to protect works or other articles in the digital age.However,at this stage,technical measures can’t automatically identify whether users’ use of works is fair or not,so they can only adopt a one-size-fits-all approach to prevent all unauthorized access or use of works.In this respect,there is a natural conflict between technical measures and rational use.This conflict is exacerbated by the fact that China provides strict technical protection measures.First,the prohibition of direct circumvention completely hollowed out fair use in traditional copyright law;second,the prohibition of providing means of circumvention makes it even more difficult for users to achieve fair use behavior;and finally,the application of technological measures directly breaks the balance of interests established by traditional copyright law,and the installation of technological measures by rights holders on works whose protection period has expired is detrimental to the public’s exploitation of the works.However,fair use is not a user’s active right,unauthorized and paid use of works is user behavior.Users cannot use fair use as a reason to implement direct circumvention of technical measures or provide means to circumvent them.In order to promote the dissemination of knowledge,cultural prosperity and social progress,it is necessary and essential to reconcile the conflict between the protection of technical measures and fair use,which is also in line with the value goal of balancing the interests of copyright law.Because of the all-or-nothing nature of technical measures and the overly strict protection method,there is a great conflict with the fair use in terms of purpose system and applicable results.From the macro system for the definition of technical measures and measures to re-frame,and on this basis to refine the technical protection measures and the use of reasonable use of the relevant methods and scope,supplemented by collective organization management,circumvention of the application of the consultation system and other related provisions,the systemic solution to the current stage of the conflict between technical protection measures and reasonable use of the problem.In the first chapter,we firstly elaborate the conflict between technical protection measures and fair use in which aspects,and know what aspects of the conflict,so that we can give the right remedy to solve the problem,and at the same time,knowing the manifestation of the conflict,which is the most important issue to know to solve the problem.In the second chapter,we know the manifestation of the conflict and the cause of the conflict,so in this chapter,we discuss the necessity and feasibility of solving the conflict.It is only from the level of jurisprudence that we can better recognize the relationship between the two from the most essential level.In the third chapter,before the first two chapters,we analyzed the conflict between fair use and technical measures protection,and also analyzed the essential reasons for the existence of the conflict between the two and the necessity of restricting technical measures from the perspective of jurisprudence,Find that in the conflict between technical measures and fair use it is not a difficult thing,the most obvious problem is whether fair use can be used to circumvent the defense of technical measures.What is the limit of circumvention of technical measures and the provision of technical measures to circumvent the means of behavior in the law is how a nature,the legal behavior of the two is how to identify,as well as an avoidance behavior,technical measures abuse and what is a form and existence,these are technical measures to protect and fair use of the conflict of articulation of the most important issues to be resolved.Finally,in the fourth chapter,above three chapters,we have a conflict,there are reasons,and analyze the jurisprudential basis of the two and the main problems,from the system as a whole to solve the current imbalance in the legislation on how to do a system of legislative improvement,to promote the resolution of the conflict between the two coordinated. |
