Research on Digital New Media Industry | Boundary of Technical Protection Measures for Copyright Owners in the Digital Age
Published:
2022-12-06
The digital age has changed the mode of information dissemination. Convenient dissemination channels and low reproduction costs have greatly promoted the speed of information dissemination, and it has also become a nightmare for copyright owners. Although digitization enables copyright owners to reduce distribution costs and quickly send their works to hundreds of millions of audiences, creating a huge market. However, this way can also be used by infringing pirates. If the right holder protects his rights afterwards, the market may have been lost, so the copyright owner is more inclined to save himself-take technical protection measures. 1 What Are Technical Protection Measures in Copyright Law? There are no uniform provisions on the definition of technical protection measures. The World Intellectual Property Organization Copyright Treaty (WCT) and the World Intellectual Property Organization Performance and Recording Treaty (WPPT) adopted in 1996 have made special provisions on technical protection measures, which indicates that the provisions of technical protection measures have been recognized by the member states of the World Intellectual Property Organization. In accordance with article 11 of the WCT: "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technical measures used by authors for the purpose of exercising their rights under this Treaty or the Berne Convention to bind them to acts in respect of their works that are not licensed by the author concerned or permitted by law." The EU's definition of technical measures is: "According to its normal operation, it can be used to prevent or prohibit infringement of copyright or other legal rights related to copyright, or the European Parliament and Council Directive 96/9/EC Chapter 3 Any technology, equipment or part of the parts of the right." These translations are more mouthful. The Digital Millennium Copyright Act (DMCA) defines it as "any technology that effectively controls access to copyrighted works and effectively protects the rights of copyright owners. "The Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society adopted by the EU in 2001 is defined as" equipment, products or equipment, products or components combined with methods designed in the normal course of its operation to prevent or prevent infringement of copyright or copyright-related rights granted by law or special rights granted in the database directive ". Similarly, the translation is quite mouthful, only the general picture can be known. China revised the Copyright Law in October 2001 and incorporated technical measures into the copyright law system for the first time. However, it was not until 2006 that the Regulations on the Protection of the Right of Information Network Communication had further explanation on technical measures, but it was limited to the perspective of network communication and stipulated as "technical measures, it refers to the effective technology, device or component used to prevent or restrict the browsing and appreciation of works, performances, audio and video products without the permission of the right holder, or to provide works, performances, audio and video products to the public through the information network." Since the "Copyright Law" did not yet stipulate "audiovisual works" at that time, the expression of this provision seems to be relatively obscure and confusing, and it is limited to the scope of information network dissemination rights, and the true connotation of technical protection measures cannot be confirmed. The current "Copyright Law" stipulates that "without the permission of the copyright owner or the copyright-related right holder, deliberately avoiding or destroying technical measures, deliberately manufacturing, importing or providing others with devices or devices mainly used to avoid or destroy technical measures Components, or deliberately providing technical services for others to avoid or destroy technical measures, unless otherwise provided by laws and administrative regulations;" this provision also does not define the technical measures in the copyright law, but only divides them into three situations: one is that the actor deliberately avoids or destroys the technical measures and uses the copyright of others; the other is to provide material conditions to avoid destroying the technical measures; the third is to help others avoid or destroy the technical measures of technical services. Is it necessary to avoid infringement of technical protection measures? Let's analyze it. 2 Legitimate technical protection measures shall meet the following conditions The law protects the legal copyright and regulates the infringement, so that the license holder can take technical measures, but not all technical measures are licensed by the law, otherwise it will lead to the abuse of technical measures and hinder the dissemination of knowledge, and even produce monopoly to undermine the order of fair competition, thus deviating from the original intention of intellectual property protection. (I) protection measures must be consistent with the purpose of protecting legitimate copyright The purpose of protection measures is to protect legitimate copyright from infringement, so its purpose is only to protect the legitimate use of copyright, not to ban it all. There are many technical measures, such as software serial number, login dynamic password, firewall, security scanning, signature authentication and so on. Among these technical measures, only the technical measures taken to protect copyright from infringement are the technical measures regulated and protected by copyright law. Otherwise, it will enter the illegal category and can be ignored. The Supreme People's Court Guidance Case No. 48 can be used for reference. Beijing Jingdiao Technology Co., Ltd. v. Shanghai Naikai Electronic Technology Co., Ltd. in the case of infringement of computer software copyright dispute. For Beijing Jingdiao Technology Co., Ltd. to realize the bundled sales of software and machines, the output data of software operation is set to a specific file format to restrict other competitors' machines from reading the data stored in the specific file format, thus extending its competitive advantage in software to the machine does not belong to the technical measures taken by the copyright owner to protect his software copyright as stipulated in the copyright law. If another person develops software to read the specific file format set by it, it does not constitute an infringement of computer software copyright. (II) protective measures must be effective The term "effective" here is relative and means that it is not easy to be avoided or cracked under normal circumstances, not that it is absolutely not avoided or cracked under any circumstances. However, if the threshold of technical measures is very low, needless to say, professionals, and even easy to be avoided or cracked by ordinary personnel, these measures obviously cannot achieve the purpose of protection, and the copyright owner is lazy to take effective protection measures. Although the copyright itself is protected, it cannot be questioned, but it cannot achieve effective protection of technical measures. It should be considered that it does not belong to the protection measures in the sense of copyright law. If it is dealt with in accordance with the destruction of technical protection measures, it is not suitable for law. (III) protection measures should not constitute a monopoly As mentioned earlier, the technical measures of legal protection are used to protect the copyright itself, not to exclude legitimate competition by means of protection. For example, the use of technical measures to bind software and hardware, and remote control, restrict users to modify or maintain, and charge high maintenance fees afterwards. Another example is that cross-regional sales are prohibited by attaching regional codes to products. Although there is controversy over this business model, if it is limited to internal sales network control, there is no need to intervene. However, if cross-regional use of products is prohibited, even if users directly "change bricks" after appropriate upgrading or modification, it has obviously violated the legitimate rights and interests of consumers and users and is inconsistent with the principle of "one-time sales exhaustion. (IV) protection measures must not conflict with fair use No matter what kind of protection measures are adopted, they shall not restrict the exercise of the right of fair use in the copyright law, that is, the thirteen exceptions stipulated in Article 24 of the copyright law. No remuneration may be paid to the copyright owner without permission, but the name or title of the author and the title of the work shall be specified, and the normal use of the work shall not be affected, and the legitimate rights and interests of the copyright owner shall not be reasonably damaged. This is also the basis for the balance of monopoly rights and public interests granted by law to copyright owners. In short, copyright technology protection measures are a self-help protection method given by law to copyright owners, which can prevent the occurrence of large-scale infringement damage in advance and avoid the loss of rights protection afterwards. At the same time, however, it should be noted that intellectual property rights benefit from monopoly rights, and that rights holders tend to expand their boundaries when using the technical measures, tend to restrict competition, tend to restrict user behavior, and tend to constantly test the bottom line of the public interest. In judicial practice, we should strengthen the consideration of technical protection measures themselves and define their protection boundaries in order to achieve a balance between public and private interests, which not only promotes the spread of literature, science and art, but also protects the interests of creators.
The digital age has changed the mode of information dissemination. Convenient dissemination channels and low reproduction costs have greatly promoted the speed of information dissemination, and it has also become a nightmare for copyright owners. Although digitization enables copyright owners to reduce distribution costs and quickly send their works to hundreds of millions of audiences, creating a huge market. However, this way can also be used by infringing pirates. If the right holder protects his rights afterwards, the market may have been lost, so the copyright owner is more inclined to save himself-take technical protection measures.
1
What Are Technical Protection Measures in Copyright Law?
There are no uniform provisions on the definition of technical protection measures. The World Intellectual Property Organization Copyright Treaty (WCT) and the World Intellectual Property Organization Performance and Recording Treaty (WPPT) adopted in 1996 have made special provisions on technical protection measures, which indicates that the provisions of technical protection measures have been recognized by the member states of the World Intellectual Property Organization. In accordance with article 11 of the WCT: "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technical measures used by authors for the purpose of exercising their rights under this Treaty or the Berne Convention to bind them to acts in respect of their works that are not licensed by the author concerned or permitted by law." The EU's definition of technical measures is: "According to its normal operation, it can be used to prevent or prohibit infringement of copyright or other legal rights related to copyright, or the European Parliament and Council Directive 96/9/EC Chapter 3 Any technology, equipment or part of the parts of the right." These translations are more mouthful.
The Digital Millennium Copyright Act (DMCA) defines it as "any technology that effectively controls access to copyrighted works and effectively protects the rights of copyright owners. "The Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society adopted by the EU in 2001 is defined as" equipment, products or equipment, products or components combined with methods designed in the normal course of its operation to prevent or prevent infringement of copyright or copyright-related rights granted by law or special rights granted in the database directive ". Similarly, the translation is quite mouthful, only the general picture can be known.
China revised the Copyright Law in October 2001 and incorporated technical measures into the copyright law system for the first time. However, it was not until 2006 that the Regulations on the Protection of the Right of Information Network Communication had further explanation on technical measures, but it was limited to the perspective of network communication and stipulated as "technical measures, it refers to the effective technology, device or component used to prevent or restrict the browsing and appreciation of works, performances, audio and video products without the permission of the right holder, or to provide works, performances, audio and video products to the public through the information network." Since the "Copyright Law" did not yet stipulate "audiovisual works" at that time, the expression of this provision seems to be relatively obscure and confusing, and it is limited to the scope of information network dissemination rights, and the true connotation of technical protection measures cannot be confirmed.
The current "Copyright Law" stipulates that "without the permission of the copyright owner or the copyright-related right holder, deliberately avoiding or destroying technical measures, deliberately manufacturing, importing or providing others with devices or devices mainly used to avoid or destroy technical measures Components, or deliberately providing technical services for others to avoid or destroy technical measures, unless otherwise provided by laws and administrative regulations;" this provision also does not define the technical measures in the copyright law, but only divides them into three situations: one is that the actor deliberately avoids or destroys the technical measures and uses the copyright of others; the other is to provide material conditions to avoid destroying the technical measures; the third is to help others avoid or destroy the technical measures of technical services. Is it necessary to avoid infringement of technical protection measures? Let's analyze it.
2
Legitimate technical protection measures shall meet the following conditions
The law protects the legal copyright and regulates the infringement, so that the license holder can take technical measures, but not all technical measures are licensed by the law, otherwise it will lead to the abuse of technical measures and hinder the dissemination of knowledge, and even produce monopoly to undermine the order of fair competition, thus deviating from the original intention of intellectual property protection.
(I) protection measures must be consistent with the purpose of protecting legitimate copyright
The purpose of protection measures is to protect legitimate copyright from infringement, so its purpose is only to protect the legitimate use of copyright, not to ban it all. There are many technical measures, such as software serial number, login dynamic password, firewall, security scanning, signature authentication and so on. Among these technical measures, only the technical measures taken to protect copyright from infringement are the technical measures regulated and protected by copyright law. Otherwise, it will enter the illegal category and can be ignored.
The Supreme People's Court Guidance Case No. 48 can be used for reference. Beijing Jingdiao Technology Co., Ltd. v. Shanghai Naikai Electronic Technology Co., Ltd. in the case of infringement of computer software copyright dispute. For Beijing Jingdiao Technology Co., Ltd. to realize the bundled sales of software and machines, the output data of software operation is set to a specific file format to restrict other competitors' machines from reading the data stored in the specific file format, thus extending its competitive advantage in software to the machine does not belong to the technical measures taken by the copyright owner to protect his software copyright as stipulated in the copyright law. If another person develops software to read the specific file format set by it, it does not constitute an infringement of computer software copyright.
(II) protective measures must be effective
The term "effective" here is relative and means that it is not easy to be avoided or cracked under normal circumstances, not that it is absolutely not avoided or cracked under any circumstances. However, if the threshold of technical measures is very low, needless to say, professionals, and even easy to be avoided or cracked by ordinary personnel, these measures obviously cannot achieve the purpose of protection, and the copyright owner is lazy to take effective protection measures. Although the copyright itself is protected, it cannot be questioned, but it cannot achieve effective protection of technical measures. It should be considered that it does not belong to the protection measures in the sense of copyright law. If it is dealt with in accordance with the destruction of technical protection measures, it is not suitable for law.
(III) protection measures should not constitute a monopoly
As mentioned earlier, the technical measures of legal protection are used to protect the copyright itself, not to exclude legitimate competition by means of protection. For example, the use of technical measures to bind software and hardware, and remote control, restrict users to modify or maintain, and charge high maintenance fees afterwards. Another example is that cross-regional sales are prohibited by attaching regional codes to products. Although there is controversy over this business model, if it is limited to internal sales network control, there is no need to intervene. However, if cross-regional use of products is prohibited, even if users directly "change bricks" after appropriate upgrading or modification, it has obviously violated the legitimate rights and interests of consumers and users and is inconsistent with the principle of "one-time sales exhaustion.
(IV) protection measures must not conflict with fair use
No matter what kind of protection measures are adopted, they shall not restrict the exercise of the right of fair use in the copyright law, that is, the thirteen exceptions stipulated in Article 24 of the copyright law. No remuneration may be paid to the copyright owner without permission, but the name or title of the author and the title of the work shall be specified, and the normal use of the work shall not be affected, and the legitimate rights and interests of the copyright owner shall not be reasonably damaged. This is also the basis for the balance of monopoly rights and public interests granted by law to copyright owners.
In short, copyright technology protection measures are a self-help protection method given by law to copyright owners, which can prevent the occurrence of large-scale infringement damage in advance and avoid the loss of rights protection afterwards. At the same time, however, it should be noted that intellectual property rights benefit from monopoly rights, and that rights holders tend to expand their boundaries when using the technical measures, tend to restrict competition, tend to restrict user behavior, and tend to constantly test the bottom line of the public interest. In judicial practice, we should strengthen the consideration of technical protection measures themselves and define their protection boundaries in order to achieve a balance between public and private interests, which not only promotes the spread of literature, science and art, but also protects the interests of creators.
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