On The Technical Measures Protection Of Copyright And Its Exceptions

The rise of the knowledge economy has led to the widespread dissemination of works by copyright owners,but it has also resulted in frequent occurrences of copyright infringement.Therefore,technological measures have become the primary means for copyright owners to prevent infringement and protect their works and related interests.Many countries have added provisions to their domestic laws to strengthen the protection of copyright owners’ interests through the protection of technological measures.China has directly incorporated the provisions of the Information Network Transmission Right Protection Regulations regarding technological measures into the Copyright Law,but the concept and scope of protection for technological measures are not clear.In addition,the exceptions to technological measures protection are limited in number and cannot be effectively implemented in practice.Based on an analysis of judicial practices and current legal provisions,this article summarizes the problems with the current Copyright Law in China through the analysis of relevant case law and controversial issues.Combining with the provisions of copyright legislation in the United States,Australia,and the European Union,as well as the judicial reasoning of relevant cases,this article proposes improvements to China’s copyright legislation.Specifically,first,the criteria for determining the "effectiveness"of technological measures should be clarified in the relevant legal provisions of the Copyright Law or related judicial interpretations.The "ordinary user standard" and the "legitimate purpose standard" should be included.Second,the current Article 49 of the Copyright Law directly incorporates the provisions of the Information Network Transmission Right Protection Regulations regarding technological measures,which limits the content of the protection of computer software technological measures.Therefore,the definition of technological measures should be improved,and the behavior of copying and running computer software without permission while evading technological measures should be regulated.Third,the limited and enumerated approach used in the current Article 50 of the Copyright Law for the exception to the circumvention of technological measures prevents the repair of smart devices and the replacement of compatible parts involving the operation of computer software from being a statutory exception or being subject to regulation by the Copyright Law.Therefore,the repair of smart devices and the replacement of compatible parts should be included as exceptions to circumvention of technological measures.Regarding the disclosure mechanism for technological measures exceptions,the article proposes two improvements:first,a "regular updating" system should be established,and second,copyright owners of technological measures should use a conspicuous way to indicate their contact information so that when users are unable to circumvent technological measures based on the statutory exceptions or have doubts about technological measures,copyright owners can provide relevant information in a timely manner.