| The newly revised Copyright Law in 2020 adds the exemption to prohibition on circumvention of copyright protection systems for technical measures,which connects the relevant regulations in the Regulations on the Protection of Information Network Dissemination Right and expands the provisions,filling the upper-level law that exemption to prohibition on circumvention of copyright protection systems for technical measure.But,there are only 5 exceptions in the technical measures circumvention exception clause,and there is no clear necessary rules such as the scope of subjects that can implement circumvention technical measures and their corresponding powers.It is necessary to make corresponding legislative supplements to it by formulating detailed implementation rules,administrative regulations,and management measures.By combing my country’s existing copyright technical measures prohibiting circumvention exception clauses and other relevant laws,regulations and judicial cases,after a comprehensive analysis,it is found that the legislative defects and deficiencies of the five clauses listed above are mainly reflected in: the application of exceptions for teaching or scientific research In the case of exceptions to the accessible version and the accessible version,there is a lack of interpretive provisions for the subject qualifications and powers to keep pace with the times;when the exceptions to the public power of state organs are applied,the relevant subjects have problems of ambiguous scope and unclear responsibilities;In the case of exceptions for encryption and reverse engineering research,the relevant subjects have the defects of unclear qualification and insufficient regulation.Select three representative extraterritorial subjects of the United States,the United Kingdom and the European Union,and use the comparative analysis method to conduct in-depth discussions on their technical measures to avoid subject rules.It was found that these countries and regions have more detailed regulations on the subject of evasion of technical measures.For example,in the relevant regulations for teaching or scientific research personnel,the temporary exception of the United States explains the eligibility of teaching institutions,and also provides for libraries and archives that implement technical measures to evade behavior.Detailed provisions have been made;the United States,the European Union and the United Kingdom have directly introduced the concepts of beneficiaries and authorized entities in the accessible version in the Marrakesh Treaty.my country can draw on the experience of extraterritorial legislation to make more refined regulations on the subject rules of implementable technical measures.Finally,focusing on the problems faced by the current situation of evasion subjects in my country’s technical measures,drawing on relevant foreign experience,combining the current situation of developing countries in our country and the general concept that public interests are higher than personal interests,this paper proposes five existing technical measures to prohibit evasion of exception subjects rules.Suggestions for improvement: supplement the rules for exceptions for teaching or scientific research,standardize exceptions for accessible versions and exceptions for encryption and reverse engineering research,adopt the "hybrid theory" to determine the relevant subjects of state organs’ public power exceptions,and establish a certification mechanism for relevant subjects of security testing exceptions. |
