Reevaluation of Fair Use Doctrine in the Digital Age ─ A Closer Look at Anticiucumvention Regulation and Its Introduction into the Copyright Act ─

• Main Authors: Fu-Hsung Hsi, 許富雄
• Other Authors: Ming-Chien Huang
• Format: Others
• Language: zh-TW
• Published: 2004
• Online Access: http://ndltd.ncl.edu.tw/handle/47830568543286603818

碩士 === 中原大學 === 財經法律研究所 === 92 === Following industrial revolution, the emerging digital revolution at the end of the twentieth century has made the human society enter into another technical era. The newly invented technologies such as digital information, <a href="http://www.ntsearch.com/search.php?q=computer&v=56">computer</a> and the <a href="http://www.ntsearch.com/search.php?q=internet&v=56">internet</a> have become part of people’s daily life and bring us convenience, efficiency, and quality in all aspects. In addition, the swift development and innovation of digital <a href="http://www.ntsearch.com/search.php?q=science&v=56">science</a> not only lead to incalculable benefits, but also has influenced the whole copyright world without limitation. On the one hand, it creates circulating digital content which makes public use of information more convenient; on the other hand, it establishes all kinds of firm protections for the digital content owners to enhance their control over those digital content, and affects the users’ habits in the digital environment. These shelters, generally called “Technical Protection Measures (TPMs)”, include but not limited to all kinds of encryption, digital right <a href="http://www.ntsearch.com/search.php?q=management&v=56">management</a>, and limited function measures. These protections differ in effects and degrees so as to distinguish different users and to prevent <a href="http://www.ntsearch.com/search.php?q=people&v=56">people</a> from using the digital publication or content without limitation or beyond authorization. To observe these technical protection measures, we can find these measures acting like locks when <a href="http://www.ntsearch.com/search.php?q=people&v=56">people</a> try to access these digital content. In spite of technological development, the owners of such “locks” may decide at their own will what range, <a href="http://www.ntsearch.com/search.php?q=time&v=56">time</a>, and place for their intellectual properties to be opened or licensed. As a consequence, does this imply that the protection granted by the copyright <a href="http://www.ntsearch.com/search.php?q=law&v=56">law</a> on such “locks” also grant the lock owners─the copyright or digital content owners - a newly created right, a para-copyright, for example, the right of access or the anti-circumvention right. Does this declare the coming of the “pay per use” era? How would the <a href="http://www.ntsearch.com/search.php?q=checks&v=56">checks</a> and balance between copyright owners’ exclusive rights and fair use be affected? Under the Principle of the Freedom of Contract and the regulation of the <a href="http://www.ntsearch.com/search.php?q=law&v=56">law</a>, if we allow the copyright owner to claim his right and protect it with certain legislation, would it be proper or overprotected? How should current legislation be modified or what adjustments should be made? The questions above are all the key problems to be solved in this thesis. Hence, this article begins with the relationship between the copyright protection and fair use under the copyright <a href="http://www.ntsearch.com/search.php?q=law&v=56">law</a>, discusses the evolution of copyright legislation from the traditional era to the digital era, and explores the impact to the digital environment resulted from the TPMs as well as the anti-circumvention articles. This thesis compares the ROC copyright <a href="http://www.ntsearch.com/search.php?q=law&v=56">law</a> to copyright legislation and implementation of several different countries, and thereby suggests that we follow the Japanese legislation, which refrains from adding the anti-circumvention article into the copyright <a href="http://www.ntsearch.com/search.php?q=law&v=56">law</a>, but to seek for a better location for such article in relevant package legislations such as Fair Trade <a href="http://www.ntsearch.com/search.php?q=Law&v=56">Law</a> or Criminal <a href="http://www.ntsearch.com/search.php?q=Law&v=56">Law</a>.