The Conflict and Balance Between Intellectual Property Rights and Public Freedom of Information in the “Anti-circumvention Clause”
GONG Shanshan* & YAN Xiaoxiang**
Abstract: There is a long-standing conflict between intellectual property rights and public freedom of information. The continuous development of the “anti-circumvention clause” has caused the conflict to intensify. As a basic human right, freedom of information is being gradually eroded by the expansion of intellectual property rights. The existing research mainly carries on the right balance from the negative protection path, but the positive protection path is more advantageous to realizing the public freedom of information and alleviates the conflict between the two kinds of rights. In practice, there are some problems in the application of the anti-circumvention clause, such as the legality of the aim, the division of the protected part, and the determination of the circumvention. This is mainly due to the lack of restrictions on technical measures, the failure to distinguish between “copyright protection” and “contact control”, and the offside and absence of administrative bodies in practice. We should protect public freedom of information by distinguishing the two measures of copyright protection and contact control and the two torts of access and use, increasing the restrictive conditions for the use of technical protection measures, and changing the functions of administrative supervision agencies.
Keywords: anti-circumvention clause · intellectual property rights · public information freedom · balance of interests · human rights
The right to freedom of information is the right of citizens to receive and convey information freely. It is a fundamental human right.1 With the continuous improvement of laws related to intellectual property rights, the protection of intellectual property rights has been strengthened in practice. However, as a kind of legal private rights, intellectual property rights should have boundaries.2 Considering the dual nature of intellectual property rights, i.e. public rights and private rights, all the rights established to protect the intellectual property owners shall adhere to the principle of balance of interests,3 and maintain a balance with public interests.4 Therefore, it is of great significance to study the conflict and balance of the two kinds of rights in the context of human rights.
The conflict between intellectual property rights and public freedom of information has existed since the birth of the intellectual property law. The introduction and development of the “anti-circumvention clause” has aggravated the conflict.5 In judicial practice, there are a large number of cases in which the “anti-circumvention clause” is applied to solve the conflict between the two kinds of rights. However, the results of judicial judgment tend to protect private rights, and very few cases consider the conflicts with other relevant sectoral laws or breakthroughs in relevant legal principles from the perspective of the public freedom of information.6 However, the existing research mainly discusses the conflict and balance between public and private rights in intellectual property law from the negative protection path such as fair use,7 fair circumvention,8 statutory exception,9 and legal exception, and lacks a discussion on the root of the conflict and the positive path of protecting the public freedom of information. For example, “fair use” only emphasizes the protection of the right to fair use of information for special groups under special circumstances,10 which is a typical method of negative protection.
Therefore, in order to make up for the shortcomings of existing theories and solve the relevant specific problems in practice, this paper first discusses the necessity and importance of protecting the public freedom of information in the conflict of the two kinds of rights from the perspective of the human rights law; Second, this paper reviews the development of the “anti-circumvention clause” and points out the continuous expansion of intellectual property rights as private rights; Third, this paper analyzes the cases of imbalance of interests related to the application of the “anti-circumvention clause”, and identifies the problems in the legality of the purpose of technical protection measures, the distinction of protected parts and the determination of circumvention; The above problems are mainly caused for three fundamental reasons: insufficient restrictions on the user of technical measures, failure to distinguish between “copyright protection” and “access control”, and offside and absence regarding the administrative enforcement power; Last, for the above three reasons, this paper puts forward three positive protection methods to achieve the public freedom of information and interest rebalancing, namely, to distinguish between “copyright protection measures” and “access control measures”, as well as “access” and “use” infringements, increase the restrictions and obligations on the use of technical protection measures, and change the functions of administrative law enforcement agencies.
I. Transition of Intellectual Property Rights to Public Rights from the Perspective of the Human Rights Law
Currently, the public freedom of information covers more diversified and broader contents and methods than before. Individuals no longer just receive information passively as before, but can actively create and transmit information.11 This shows the very important value of the public freedom of information in the current cultural society, that is, everyone has the right to free expression. However, according to the market logic, the realization of the public freedom of information does not produce favorable commercial value for capital, and may even harm commercial interests, therefore the identity of individual “cultural producers” based on the freedom of information is easy to be ignored and restricted. So, in the context of human rights law, the intellectual property system, which has long been in the struggle between private rights and public rights, should make a transition to public rights.
There are three reasons: First, intellectual property rights can be incorporated into the current universal concept of human rights. In theory, intellectual property rights are an extension of the private right of information freedom over individual rights. The freedom of information has been recognized as a fundamental human right in the modern democratic law-based society whether in international human rights documents or domestic human rights laws. Private rights and human rights are not in conflict essentially. Private rights are the basis of human rights concretization, and human rights are the collection of private rights abstraction. Therefore, although intellectual property rights are private rights legally, they also have overlapping contents with fundamental human rights.12 Second, the spirit of equality in intellectual property rights has the attribute of human rights required in the information age. This spirit of equality requires not only that intellectual property rights have the function of protecting the rights of creators, but also that this function of protection does not constrain the cultural participation of the public or the cultural development of society. In other words, equality in the information age is not only equality between creators but also equality between creators and society. Creators and society are interdependent and mutually reinforcing. Therefore, presently, the spirit of equality means not only free choices at the individual level, but also equal opportunities at the social level, and even institutional guarantees at the national level. Third, the intellectual property system not only helps protect the property rights of creators but also helps realize fundamental human rights at a higher level. The Universal Declaration of Human Rights gives a human-rights meaning to intellectual property rights, provides a balanced concept for resolving conflicts of interest in intellectual products in the intellectual property system, grants the public the right to “participate in cultural life” and “enjoy scientific progress and the benefits it generates”, and believes that public rights and interests are superior to the “simple economic operation of intellectual property laws” by individuals.13 Therefore, intellectual property rights should maintain the dual value orientation in the concept of human rights, and think about how to obtain more intellectual achievements for the public under the premise of respecting the work of creators.
The issue of interest imbalance caused by the application of the “anti-circumvention clause” in the Copyright Law, which will be discussed in this paper, is still rooted in the enduring conflict between public rights and private rights in intellectual property. The innovation of technical means does not cause the conflict but exacerbates it. The dual nature of public and private rights of intellectual products is the reason for the conflict. Before the long-standing conflict between the two kinds of rights, in the context of human rights, the intellectual property system will make a transition to public rights, that is, to re-attach importance to the public interest. After all, if the expansion of the intellectual property system caused by the profit-driven capital exceeds the optimal point, the danger to the public interest is as great as the risk that the system may be destroyed due to the declining costs of reproduction.14 Since most of the previous studies on the restriction of private rights in intellectual property have been analyzed at the level of political economy, and the theories have been relatively complete, this paper puts forward three reasons for the restriction of private rights from the perspective of the human rights law:
First, individual human rights should be limited to collective human rights. According to the different subjects enjoying rights, human rights include individual human rights and collective human rights. Since human rights involve all social sectors, the survival and happiness of each individual are limited by the stability and development of society. When capital constrains collective human rights by means of science and technology and by virtue of the protection of sectoral laws, the features of the constitution as the organic law and the supreme law should be apparent in time to limit how capital tries to justify its behavior.15 Although individual human rights represent the legitimacy of one’s autonomous action and are protected by the constitution and laws, such autonomous action has its limits. Article 51 of the Constitution of the People’s Republic of China states: “Citizens of the People’s Republic of China, in exercising their freedom and rights, may not infringe upon the interests of the State, society or the collective, or the lawful freedom and rights of other citizens.” Therefore, the boundary of individual basic rights should be defined based on the public interest. If it goes beyond the scope of public interest, the exercise of individual basic rights will not be protected by law but may be severely punished by law.
Second, the principle of balance of interests should have a new interpretation in human rights law. Human rights are both individual rights and collective rights. Human rights mean not only rights and freedom but also duties and responsibilities. Therefore, in the context of human rights law, the principle of balance of interests should involve two levels of balance: the balance between different subjects, that is, the balance between individual interest and public interest, and the balance of the same subject, that is, the balance between individual rights and individual duties. Duties arise from the individual interest in the face of the public interest, thus the balance of the latter implies, to some extent, the balance of the former. The boundary of rights defines the scope of rights exercise and the dividing line between the right holder and the public. Once the exercise of rights goes beyond the boundary, it will violate the public interest and hinder social development and progress. In intellectual property rights, the exclusive rights of intellectual property owners cannot exceed the public interest that the legal system wants to protect. The balance between individual interest and public interest in intellectual property rights means that the principle of balance of interests must be observed in the interpretation and application of the intellectual property law,16 that is, taking the protection of private rights as the premise and the balance of interests as the constraint.
Third, the value of freedom and equality should take precedence over efficiency and effectiveness. Freedom and equality are the essential characteristics and basic requirements of human rights. Citizens’ cultural products may be elegant or vulgar, but they should not be classified. The creation and development of culture should be determined by all participants. To some extent, the classification of cultural products also means the classification of the rights of subjects participating in culture, which is not equality. To enhance the initiative of participants, not only the individual cultural innovation ability must be correspondingly improved, but also the public freedom of information must be further enhanced.17 As a result, the economy should not be protected at the expense of culture and freedom. Legislation and justice should not continue to favor the model of traditional commercial entities dominating the content selection of consumers, because the appropriate restriction of capital gains will stimulate the potential public welfare, which is conducive to the cultural innovation of individuals’ secondary creation from the information controlled by commercial entities. Social civilization develops and evolves in the process of individuals constantly receiving, transmitting, creating, and re-receiving information, data and knowledge. While the law protects technology and the economy, it should be cautious about models that come at the expense of public freedom of information and cultural innovation.
II. Development of the “Anti-circumvention Clause” and Private Rights Expansion
The continuous development of digital technology has had a great impact on traditional copyright protection. In the initial network environment, simple copy and paste, download and reprint could easily violate the rights and interests of copyright owners. To deal with large-scale network infringement, various technical means emerged, such as watermarking, password setting, and limited or paid use.18 At the same time, the legality of setting technical measures for network works was determined by legislation both at home and abroad. Since the United States imposed a ban on the production and distribution of wiretapping cable communication equipment in 1984, prohibitive provisions with the meaning of “anti-circumvention” have gradually emerged. The most typical example is the U.S. Audio Home Recording Act of 1992 where the description of anti-circumvention technical measures “prohibiting damage to digital audio and video recording equipment” was incorporated into the sectoral law for the first time as a prohibitive legal norm.19
In 1996, two international conventions, i.e., WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), adopted by the World Intellectual Property Organization (WIPO), clearly stipulated that appropriate and effective legal protection and remedies must be given to scientific and technological protection measures.20 After that, Article 721 and Article 822 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) required that intellectual property rights should be protected in a manner conducive to technological innovation and dissemination,23 and under this condition, members may restrict the abuse of intellectual property rights detrimental to the public interest. Therefore, whether it’s conducive to the public interest became an important issue to be considered in the protection of intellectual property rights. TRIPs played an important role in guiding members to formulate laws related to intellectual property rights, that is, the principle of balance of interests established in the article should be the establishment standard for the framework of members and their intellectual property legal systems. For example, the U.S. Digital Millennium Copyright Act 1998 (hereinafter referred to as DM-CA), the EU’s Copyright Directive 2001, the UK’s Copyright Regulations 2003, and China’s Taiwan region 2014 Amendment to the Copyright Act introduced the clauses of “protection technical measures” and “anti-circumvention” and mentioned the prohibition of “intentional circumvention or sabotage of technical measures” and the prohibition of “the act of manufacturing, selling devices designed to circumvent or hack access control technologies or providing such services”.
China’s first anti-technology circumvention rule can be traced back to Article 18 of the Interim Regulations on Administration of Software Products (hereinafter referred to as the Interim Measures) promulgated by the Ministry of Electronics Industry in 1998. However, as the Interim Measures were sectoral regulations that only regulated the company, it had no practical effect. In 2001, for the first time, China included the prohibitive provisions of “anti-circumvention technical measures” in Paragraph 6, Article 47 on civil, administrative, and criminal liabilities of the Copyright Law, in the form of an amendment to the Copyright Law of the People’s Republic of China (hereinafter referred to as the Copyright Law 2001). In 2006, China adopted the Regulations on Protection of the Information Transmission Rights on the Internet (hereinafter referred to as the Regulations), and revised it in 2013. Based on the “anti-circumvention clause” in the Copyright Law 2001, Articles 4, 12, 18, and 19 of the Regulations further stipulated the types, exceptions, and legal liabilities of anti-circumvention technical measures. The Copyright Law, which came into effect on June 1, 2021 (hereinafter referred to as the Copyright Law 2021), amended the “anti-circumvention clause”, and revised Article 47 of the Copyright Law 2021 to Article 49, Article 50 and the corresponding liability clause of Article 53. The revised “anti-circumvention clause” further expanded the intellectual property rights of the right holder, but contained no obligations that matched the rights, which was not conducive to the protection of public information freedom.
With the continuous application of digital technology in the creation and network dissemination of works, the legislation of technical protection measures has been a general trend. The recognition of the legality of technical protection measures expands the rights scope of copyright owners. However, due to the lack of restrictions on the use of technical protection measures in legislation, it is difficult to avoid the abuse of technical protection measures and restricted fair use of the public in practice. On the one hand, the “anti-circumvention clause” has no restrictions on the form and type of anti-circumvention technical measures. Under the protection of the law, copyright owners overuse their rights and protect their rights through further encryption, contracts, and even aggressive programs such as “logical lock” and viruses, with legitimate purposes, but illegal means.24 On the other hand, the “anti-circumvention clause” is against all users without discrimination, except the right holder. The “anti-circumvention clause” does not restrict the rights of copyright owners when it treats well-intentioned uninformed users or those with legitimate purposes. The research and duties conducted by public welfare institutions or technical service organizations in the absence of technology measures should not be subject to the regulation of the “anti-circumvention clause”. Therefore, it is an important issue to make copyright in cyberspace reasonably protected by the law.25 The exemption in Article 50 added in the Copyright Law 2021 is precisely the exclusion of the object of application of the “anti-circumvention clause”, but the problem of the damage to the public freedom of information caused by the abuse of rights is ignored. In terms of the establishment and evolution of the “anti-circumvention clause” in China, starting from filling the legislative gap on the regulation of technology measures, intellectual property rights continue to show a trend of expansion. Although the Copyright Law 2021 has limited the objects of regulation, it is difficult to change the continuous erosion of the public freedom of information by private rights protected by the “anti-circumvention clause” on the whole. Laws continue to recognize the intellectual property rights of copyright owners in cyberspace, but rarely the public rights of users.26 The addition of Article 50 does not mean that some rights and interests of users are added. To be precise, it is a restoration of rights, that is, lawmakers excluded those who should not have been covered by the “anti-circumvention clause” “at the very beginning”.
III. Manifestation of Interest Imbalance in the “Anti-circumvention Clause”
The imbalance of interests in the “anti-circumvention clause” is mainly manifested as the infringement of intellectual property rights on citizens’ rights to fair access and fair use of works and freedom of expression. This kind of infringement is reflected in the following three aspects of judicial practice:
A. Legality of the purpose of technical protection measures
Article 49 (1) of the Copyright Law 2021 states: “Right holders may take technical measures to protect copyright and copyright-related rights.”Therefore, technical protection measures should be taken to protect copyright and copyright-related rights, and not for monopoly, tie-in sales, or other improper commercial interests. The anti-circumvention clause should not protect technical measures taken for illegal purposes.
In practice, tie-in sales are a common case of unfair use of technical measures. For example, in 2006, Beijing Jingdiao Technology Co., Ltd. (hereinafter referred to as “Jingdiao”) sued Shanghai Naiky Electronic Technology Co., Ltd. (hereinafter referred to as “Naiky”) for infringement of its computer software copyright.27 In this case, the data files generated by Jingdiao’s copyrighted software JDPaint were all in Eng format, which could only be read by JDPaint, and the software was only equipped for use on the numerical control engraving machines independently manufactured by Jingdiao. The plaintiff Jingdiao found that the defendant Naiky’s software Ncstudio could bypass JDPaint and directly read data files in the Eng format generated by it. Therefore, the plaintiff filed a lawsuit on the grounds that the defendant intentionally circumvented or undermined the technical measures taken by it to protect its software copyright. The defendant Naiky argued that the data files in Eng format were not under the protection of software copyright and therefore did not constitute an infringement.
The final decision of the court is as follows: First, the files in Eng format are the output of JDPaint running on the computer. They are not coded instructions, and cracking the files in Eng format may not cause illegal copying of JDPaint. In addition, the data recorded in the file is not part of the software of Jingdiao, thus it is not under the protection of computer copyright. Second, essentially, Jingdiao set the output data into a specific Eng format and encrypted it through its developed software JDPaint, aiming to restrict other companies’ machines and software from reading the data and achieve the tie-in sales of the software and computer equipment developed by it. Tiein sales are not a technical measure taken by the right holder to protect its copyright. Therefore, the court ruled that the development of software to read documents in a specific format set by the right holder does not constitute a circumvention or breach of technical protection measures, nor does it infringe on the right holder’s copyright.
Another common case of unfair use of technical measures is zoned sales. Taking Sony’s sales of PlayStation as a typical example, Sony divided the world into six zones, prohibited the use of game discs purchased from other zones in consoles in the zone through technical protection measures, and claimed that it used the technology that prohibited parallel imports through zoned sales to stop users from buying pirated discs from other zones. The legality of such technical measures for zoned sales is not consistent among countries. In the United Kingdom, for example, this technical measure is deemed legal. But in Australia, it is considered an unfair means of competition. In the eyes of the Intellectual Property and Competition Review Committee of Australia, Sony may use the technology that prohibits parallel imports to achieve market segmentation and set higher prices in the Australian market than in other regions, so the technical measure should not be protected by the “anti-circumvention clause”.
In addition to tie-in sales and zoned sales, the use of technologies that illegally collect personal privacy should not be protected by the “anti-circumvention clause”. Software companies may add tracking technology to their software, claiming to protect the software copyright and prevent its software from being hacked.28 However, this tracking technology may reveal users’ personal and private information.29
It can be seen that the lack of restrictions on technical protection measures in the Copyright Law may result in technical protection measures violating the Anti-Monopoly Law, the Law on the Protection of Consumer Rights and Interests, and other laws in practice. Commercial companies with copyright can use the means of technical protection to build technical barriers, so as to achieve the purpose of commercial monopoly. Therefore, in judicial practice, it is necessary to clearly distinguish whether technical protection measures are used to protect copyright or to obtain an unfair commercial competitive advantage. Technical protection measures designed to achieve tie-in sales, segment the market, infringe on the legitimate rights and interests of consumers, or collect personal privacy information should not be protected by the “anti-circumvention clause” in the Copyright Law.
B. Distinction between protected and unprotected parts
There is another difficulty in the current application of the “anti-circumvention clause”. Due to the lack of restrictions on technical protection measures, technical measures may protect both copyrighted and uncopyrighted parts, mainly reflected in the following two aspects.
First, technical protection measures may include the parts that are not copyrighted. Compared with the public as users of intellectual products, companies as copyright owners have huge technological advantages. Where the Copyright Law has no restrictive provisions on the use of technical protection measures by the rights holder, the rights holder can include public domain works or purely phenomenal and factual parts that are not under the copyright protection as well as derivatives of intellectual property works, etc., in the scope of technical protection, in the name of copyright protection. Taking the dispute between Jingdiao and Naiky mentioned above as an example, Jingdiao considered that the data files in Eng format generated by JDPaint were under its copyright protection and encrypted them. However, the court ruled that the above data files were not under copyright protection. This also means that Jingdiao abused technical measures to gain market competitive advantages and form a commercial monopoly and that users of Eng data files were hindered in their free use of such public resources by Jingdiao. When users found that their right to fair use was infringed, they had neither sufficient technical support to resist such abuse of technical measures, nor a legal basis to complain and claim for the infringement.30 In this way, the abuse of technical measures not only formed commercial monopoly and improper competition, but also prevented the free transmission of culture and ideas, and damaged the right of the public to free access and use of public works.
Second, technical protection measures may include works whose copyrights have expired.31 To promote the balance between copyright protection and public freedom of information, the Copyright Law stipulates the time limit for copyright protection. However, there is no relative time limit in the provisions of technical protection measures, which means that even though copyright is time-bound, the technical protection of copyright can be permanent. Even if copyright protection has expired, intellectual products that are private and have completely entered the public domain and become public products, copyright will continue to be protected since there is no institutional provision or specific clause on the elimination and screening of such works in the Copyright Law. Technical protection measures for expired works may limit the public’s right to have free access to public information. For example, in the case of a dispute over unfair competition between Beijing Sursen Digital Library Software Technology Co., Ltd. and Beijing Shiji Chaoxing Information Technology Development Co., Ltd.32 Sursen turned a large number of books into digital books and limited them by using technical protection measures. However, the copyright protection of most paper books was expired, so the technical protection measures used by Sursen were beyond the protection scope of the Copyright Law, thus Sursen could only request the protection of the Anti-Unfair Competition Law of the People’s Republic of China on the grounds that the technical measures of the database storing digital books were damaged. However, if the copyright protection of books has expired, books with the nature of public goods should not be restricted by technical protection measures. Since there was no review, correction, or withdrawal mechanism for technical protection measures, the user of technical protection measures increased the costs of public use of public works and formed an unreasonable monopoly in technology imperceptibly.
C. Determination of circumvention
First, there is a lack of clarity about the burden of proof for the determination of circumvention. For example, in the case of a dispute over infringement on computer software copyright between Chanjet Information Technology Co., Ltd. and Liu Yingyao, Zhejiang Taobao Network Co., Ltd.,33 Liu Yingyao cracked the “software T6” developed by Chanjet and sold it on Taobao. The court found that Liu Yingyao had violated Chanjet’s distribution right by selling “T6” online without Chanjet’s permission, but it also ruled that “Since Liu Yingyao did not provide relevant evidence as to the source of the pirated software she sold, the infringement should be presumed to include copying.” In this case, the court held that whether defendant Liu Yingyao hacked and copied the software should be proved by the defendant, not by the plaintiff. However, in the case of the dispute over intellectual property ownership and infringement between Segger and Hao Chengxin, Shenzhen Xinyada Electronics Co., Ltd.,34 the opposite was true. The court found that Hao Chengxin and Shenzhen Xinyada Electronics sold the goods with Segger’s registered trademarks “J-LINK” and “SEGGER”, which violated the plaintiff’s exclusive right to use the registered trademark according to the law. However, the court also ruled that the two defendants’ conduct only involved sales, and the plaintiff did not prove that the alleged infringing goods were designed or developed by the two defendants. In this case, the plaintiff bore the burden of proof on whether the products were hacked and copied. Apparently, in practice, there was a difficulty in the burden of proof in determining whether the defendant took technical protection measures. When the right holder sought judicial relief based on the same infringement facts, if it was based on the technical protection measures clause, the right holder would bear a higher burden of proof. Even the judge also admitted in the judgment that because it’s more difficult to prove the act of destroying technical measures than the act of infringing copyright, the right holders are relatively reluctant to take this remedy,35 and even some plaintiffs explicitly stated in the lawsuit that they did not claim that the defendant had destroyed their software technology protections.36 The “anti-circumvention clause” does not specify who bears the burden of proof. However, because the acts of destroying technical measures and copying are carried out in secret, it is difficult to find evidence. If the plaintiff bears the burden of proof, it will result in that the “anti-circumvention clause” exists in name only in judicial practice.
Second, the Copyright Law and related judicial interpretations fail to clarify the liability for infringement acts such as circumvention, destruction, reproduction, sales, and use.37 In the case of the dispute between Chanjet and Liu Yingyao and the case of the dispute between Segger and Hao Chengxin, Xinyada Electronics, the defendants were accused of destroying, copying, and selling computer software. However, in the case of dispute over infringement of computer software copyright between Materialise and Dongguan Benlei Technology Manufacturing Co., Ltd., the court found that the defendant Benlei’s act of copying and using the software involved in the case for production and operation infringed Materialise’ right to copy the computer software involved. In this case, Benlei did not defend whether it had bought the software from others or whether it had not copied it, and the actual evidence only proved that Benlei’s computers had been installed with pirated software from Materialise. However, the court held that in the process of installing the software involved, the software involved would inevitably be made into one or more copies, so the court found that Benlei had copied the software involved. As previously mentioned, the Copyright Law and related judicial interpretations fail to clarify the liability for infringement acts such as circumvention, destruction, reproduction, sales, and use, therefore, in practice, the judge’s subjective discretion is relied on when distinguishing related acts. This paper holds that sales and use for production and operation are the most harmful to copyright, followed by reproduction, circumvention, and destruction. Because sales and use for production and operation are forms of communication. Furthermore, production and sales have an order-of-magnitude impact on the expansion of communication, and compared with production and sales, copying has a smaller impact on the expansion of communication. If not involving sales, production, reproduction, and other communication behaviors, circumvention and destruction are more likely to be used as means to facilitate communication for which the liability is naturally lower compared with the act of communication itself. In judicial practice, if the above acts are not made by the same subject, each subject should bear the loss of the rights holder according to their respective liability. It is unreasonable to apply equal responsibility to all acts without distinction.
IV. Reasons for Imbalance of Interests in the “Anti-circumvention Clause”
As mentioned above, in a large number of cases where the “anti-circumvention clause” is applied to resolve the conflict between the two kinds of rights, the judgment result tends to protect intellectual property rights rather than public freedom of information. The root causes of the interest imbalance that tends to protect private rights mainly include the following three aspects: First, there are insufficient restrictions on users of technical protection measures, which are mainly reflected in four aspects: First of all, technical protection measures should not apply to works that are already in the public domain in accordance with the law and that do not involve additional labor. These include not only works that are not copyrighted but also those whose copyright has expired. In addition to the technical measures used, the user of technical measures shall not apply the “anti-circumvention clause” to the works without additional labor. Next, the “anti-circumvention clause” shall not apply to users who have reasonable reasons for circumvention and the objects they help. There is an objective gap between the users of technical measures and those who have reasonable reasons for circumvention in technical competence and technical means. Users often do not have anti-circumvention technical measures or means, and the failure to use anti-circumvention technical measures may hinder their legitimate and reasonable use. Therefore, when the providers of technical circumvention help users to whom the “anti-circumvention clause” is not applicable and users with legitimate and reasonable purposes of use, the “anti-circumvention clause” should not apply to them or the users of works. Furthermore, the purpose and results of using technical protection measures should not violate the Anti-Monopoly Law, the Anti-Unfair Competition Law, the Law on the Protection of Consumer Rights and Interests, and other relevant laws. The use of technical protection measures to achieve illegal commercial purposes such as tie-in sales, market segmentation, infringement on legitimate rights and interests of consumers, or collection of personal privacy information shall be prohibited on the grounds of violation of relevant laws. Lastly, there is an imbalance between the rights and obligations of the user of technical protection measures. For example, the user of technical protection measures should bear the obligation of copyright identification. In practice, it is common for platform companies to take technical protection measures for all works on the platform without marking the actual copyright owners.38 In addition, when a user with reasonable reasons for circumvention makes a request to the user of technical protection measures for circumvention, the user of technical protection measures shall be obliged to actively cooperate with him and provide assistance.
Second, no distinction is made between “copyright protection measures” and “access control measures”.39 Different from the U.S. Digital Millennium Copyright Act (DMCA), the current regulations on technical protection measures in the Copyright Law and the “anti-circumvention clause” in China do not distinguish between “copyright protection measures” and “access control measures”. In foreign countries, although the Copyright Law confirms the legality of technical measures and anti-circumvention technical measures through legislation, it restricts anti-circumvention technical measures in a larger range. For example, in order to protect the right to be informed of network users, the U.S. Digital Media Consumers’ Rights Act adds the obligation of notification to the producers and publishers who implement technical measures. Most countries, such as the United States, Australia, and New Zealand, have made a distinction among various anti-circumvention measures. According to the object of protection, anti-circumvention measures can be divided into “copyright protection measures” and “access control measures”. The former protects the exclusive rights of copyright owners and involves the use of works, while the latter restricts the channels of access to the works of copyright owners.40 The latter makes the protection of copyright owners in the Internet age more comprehensive than before,41 and the control of access channels has avoided copyright infringement. Therefore, in terms of the fair use of the public, the practice of prohibiting “access control measures”, rather than “copyright protection measures”, through legislation in most countries is worth learning. Currently, China has not classified anti-circumvention measures by type, and technical circumvention measures for copyright or access channels are all subject to legislative regulation. This means that the Copyright Law not only regulates the infringement of access to works but also the infringement of the use of the works caused by the same source of infringement. In other words, the Copyright Law can defend against the source of infringement upon the intellectual property rights of the right holder, and even infinitely defend against the subsequent dissemination, re-creation, and re-dissemination.
However, the circumvention of “copyright protection measures” does not need to be subject to the “anti-circumvention clause”. As far as public interest is concerned, it is reasonable and balanced to regulate “contact control measures” through the “anti-circumvention clause”. There are two reasons for this: First, in theory, if those who take technical measures, such as inserting advertisements or unrelated software downloads from the same developer, only aim to increase the time for the public to access works for profits, rather than substantially restricting the public’s access to the works, it means that the copyright owner, manufacturer or investor does not oppose or restrict the disclosure of the product, therefore it is an extensive interpretation and even analogical interpretation to regard the way that the user avoids increased access time as a technical circumvention. Second, in practice, if there are infringements and other unfair uses in the circumvention of “copyright protection measures” taken by the product user, even if in the absence of the “anti-circumvention clause”, the product user should be held liable for violating the relevant provisions of the Copyright Law or other laws. It is worth mentioning that in the digital age, the expanded protection of intellectual property rights is essentially that of producers and investors, and those who benefit are neither copyright owners in the traditional sense, nor the public. Therefore, we should be cautious about expanding the scope of intellectual property interpretation in theory and applying multiple provisions to the same actor in practice.42 Law is the regulator of interests, and so is the Copyright Law. The protection of intellectual property rights should always take into account the public freedom of information.
Third, there are offside and absence regarding the administrative enforcement power. Presently, the administrative enforcement power in the field of intellectual property only emphasizes the protection of private rights but neglects the attention to public rights. On the one hand, as intellectual property-related laws treat technical protection measures as infringement prevention, currently administrative law enforcement is mainly carried out in accordance with the Guidelines for Copyright Administrative Complaints (hereinafter referred to as the Guidelines for Complaints), the Measures for the Implementation of Copyright Administrative Penalties (hereinafter referred to as the Implementation Measures) and the Regulations on the Protection of Computer Software of the State Council. Since intellectual property rights are private rights, the protection mode of corresponding administrative enforcement power should be similar to that in general civil infringement cases, and administrative organs need not get involved too much. However, China’s dual copyright protection mode of “administration + justice” leads to the offside of administrative enforcement power, and further results in “intellectual property rights becoming public rights”; On the other hand, there are two omissions regarding administrative enforcement power. First, the relevant administrative provisions are not effectively connected with Article 50 of the Copyright Law, and there are no exceptions for administrative enforcement related to circumvention of technical measures. Second, as the legislation of upper levels does not grant relevant enforcement power, the current administrative law enforcement only provides for the corresponding punishment for the infringement on others’ copyright but does not provide for the corresponding punishment for any abuse of copyright or anti-circumvention technical measures that lead to commercial monopoly and malicious competition. For example, the complainants in the Guidelines for Complaints are limited to copyright holders, rather than the general public, and the scope of complaints covers only copyright infringement, not abuse of technical protection measures.
V. Positive Protection of the Public Freedom of Information
To reasonably regulate the use of technical protection measures and protect the public freedom of information, this paper proposes three improvement methods based on the above reasons for interest imbalance:
First, the “anti-circumvention clause” needs to add restrictions on the use of technical protection measures to promote the fairness and justice of judicial decisions. Firstly, as mentioned above, the “anti-circumvention clause” should explicitly stipulate that no entity has the right to use technical protection measures to restrict the public’s free access to public works that are not copyrighted (including works whose copyright protection has expired). Next, the “anti-circumvention clause” shall explicitly stipulate that no one shall, under the pretext of copyright protection, use technical protection as a means to achieve illegal commercial purposes such as tie-in sales, market segmentation, infringement on legitimate rights and interests of consumers or collection of personal privacy information. Lastly, when applying the “anti-circumvention clause”, it is necessary to pay attention to the possibility of conflict with other sectoral laws. For example, in the case of the dispute between Jingdiao and Naiky mentioned above, Jingdiao used technical protection measures to bundle machine tools, software, and software-generated files, which constituted the behavior of tie-in sales. This violates Article 12 “A business operator may not, against the will of purchasers, conduct tiein sale of commodities or attach any other unreasonable conditions to the sale of their commodities” and Article 6 “A public utility enterprise or any other operator having monopolistic status according to law may not restrict others to buying the goods of operators designated by it to exclude other operators from competing fairly” in the Anti-Unfair Competition Law. In the process of judicial decision, it is necessary to examine the legality of technical protection measures before proceeding to determine whether the circumvention of technical measures is illegal or not.
Second, the “anti-circumvention clause” should clearly distinguish between “copyright protection measures” and “access control measures”, and clearly distinguish between “access” and “use” by the infringer. Generally, once the court finds that the “access” behavior violates the “anti-circumvention clause”, it will no longer evaluate the “use” or take actions that include evaluation and will not bundle the previous behavior to the subsequent behavior, or finally conclude that the defendant’s circumvention of the clause and related production activities are illegal. The conflict between intellectual property rights and public rights and interests lies in “use”. The principle of balance of interests should also be fully implemented in this link. Such mechanical reasoning is neither in line with logical derivation nor the principle of balance of interests. First, once the “access” behavior is over, regardless of whether it is illegal or not, the results of its evaluation should not affect the subsequent “use” behavior. The establishment mechanism of the “anti-circumvention clause” is to prevent improper “access” by technical means, so as to protect the copyright of the intellectual property owner quickly and effectively. Either in terms of the original intention of the “anti-circumvention clause” or the scope of protection, it cannot be concluded that it may affect the “use” behavior; Next, if the defendant’s “use” behavior is illegal, it can be punished according to relevant laws. But the defendant’s “use” behavior, especially the behavior of cultural reproduction, does not violate other laws, thus it cannot be considered as a second violation on the grounds that the “access” means violating the “anti-circumvention clause”. Hence, it can be concluded that even if the “access” behavior violates the “anti-circumvention clause”, it does not necessarily lead to that the “use” behavior and reproduction are illegal. Only by taking the public freedom of information as a constraint and repeatedly deliberating the logic of the act, can the “anti-circumvention clause” not become a mechanism that undermines the delicate balance between the protection of exclusive rights and the public freedom of information and the intellectual property law has long tried to establish.
Third, it is necessary to change the function of administrative law enforcement agencies and shift the focus of administrative law enforcement from the protection of private rights to the protection of public freedom of information. As legal private rights, intellectual property rights are inevitably realized in a way that infringes on the public interest. As the executive organ of power, administrative bodies should pay attention to the infringement of private rights on the public interest under the premise of protecting the public interest. At present, relevant administrative provisions mainly focus on the supervision of copyright infringement, but ignore the abuse of technical protection measures by copyright owners and the infringement of the public freedom of information.43 Therefore, administrative law enforcement agencies need to change their functions: in view of the offside of administrative law enforcement power, administrative law enforcement agencies should reduce administrative interference in copyright infringement cases. It is necessary to consider establishing a third-party institution to supervise the fair and legitimate use of technical protection measures by copyright owners to coordinate the contradiction between copyright and the public right to freedom of information; In view of the omission of administrative enforcement power, the circumstances where technical protection measures can be circumvented should be clearly stipulated according to Article 50 of the Copyright Law, and administrative provisions such as the Guidelines for Copyright Administrative Complaints and the Measures for the Implementation of Copyright Administrative Penalties should be effectively connected to fill the existing gap in exemption from liability; The Copyright Law should add restrictions on the use of technical protection measures, as well as administrative provisions for limiting the abuse of technical protection measures and protecting the public freedom of information. Under this premise, it is also necessary to strengthen the examination and supervision of the illegal use of technical protection measures by administrative law enforcement agencies, such as adding victims of the abuse of technical protection measures to the complaints provided for in the Guidelines for Copyright Administrative Complaints and the Measures for the Implementation of Copyright Administrative Penalties and adding specific circumstances of abusing technical protection measures to the scope of complaints.
VI. Conclusion
Since intellectual property law involves both public and private rights, all the rights established to protect intellectual property owners must be balanced with the public interest. With the continuous development of the intellectual property protection system and network technology, on the one hand, intellectual property protection continues to expand; On the other hand, the connotation and demand of the public freedom of information are constantly expanding, and the conflict of interest between them is increasingly tense. The establishment and development of the “anti-circumvention clause” aggravates the imbalance. There are three purposes and means of technical protection measures as below: First, use anti-counterfeiting watermark and other technical means to distinguish genuine products from pirated products, so as to avoid the loss of consumers and rights holders; Second, use information encryption to avoid plagiarism by business peers, thereby building technical and information advantages; Third, build exclusivity of intellectual products as public goods, and require users to pay to use the products, thus achieving commercial monopoly. In this process, unfair competition such as tie-in sales and commercial monopoly is very likely to occur. The legitimate use of technical protection measures is mainly to achieve the first two purposes, while the abuse of technical protection measures is mainly for the third purpose.
The original intention of establishing intellectual property rights is to protect the interests of intellectual property owners, encourage innovation and the free flow of information, and thus achieve cultural prosperity and the public interest. Although strengthening the copyright protection of network publishing has a positive effect on stimulating the creation of culture by copyright owners, the current Copyright Law often protects commercial companies with copyright, rather than copyright owners in the traditional sense. Commercial companies use the intellectual property law not only to protect legitimate property rights but also to prevent consumers from becoming new cultural producers. On the one hand, through the dual means of technology and law, commercial companies hinder individual cultural reproduction and form a commercial monopoly of the cultural market; On the other hand, with the popularization and development of Internet technology, the demand for individuals to participate in cultural innovation and artistic expression through the Internet is rising, and the demand for the public interest is also constantly expanding in virtual space. Because of the diversity of cultural production modes, it is very difficult for commercial companies to regulate the cultural reproduction of citizens, and the timely emergence and expansion of the “anti-circumvention clause” may become a powerful tool for commercial companies to curb such cultural reproduction behaviors. Commercial companies with technical advantages and litigation advantages seek the protection of the “anti-circumvention clause” to realize copyright monopoly, thus infringing on the public’s rights to fair access and use of information under the right to freedom of information, as well as the freedom of creation and expression, which completely violates the original intention of the establishment of intellectual property rights. The protection of individual fundamental rights should be bound by the public interest. This is the premise of maintaining the balance of intellectual property interests. The public freedom of information, centered on fair access and use of information, and freedom of expression, is as important as the protection of intellectual property rights.
(Translated by SHEN Jinjun) * GONG Shanshan ( 龚珊珊 ), Doctoral candidate, School of Law, Southeast University.
** YAN Xiaoxiang ( 严小翔 ), Doctoral candidate in Public Administration, University of Macau. This paper is a phased result of the general project of the National Social Science Fund of China “Research on the Boundary and System Construction of Criminal Liability of Internet Service Providers” (Project No. 18BFX104).
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