【作者】 廖家明；

【导师】 丁凌华；

【作者基本信息】 华东政法学院 ， 法律， 2005， 硕士

【摘要】 随着互联网时代的到来,版权制度所赖以存在的物质基础发生了革命性的变化。信息技术已经广泛地介入版权领域并对其产生了深刻的影响。这种影响主要表现在两个方面: 第一、技术的进步大大提高了人们复制、发行、出版、控制信息产品的能力。数字技术使几乎所有传统作品的文字、图像和声音都可以用0和1的二进制数码来表达,其复制成本显著降低,且复制件的质量与原件相比毫不逊色,在很大程度上消除了盗版者在模拟时代遇到的障碍。再者,计算机网络的出现使作品发行的速度发生了根本性的飞跃,每秒数以亿计字节的网络传输速度令信息的扩散瞬间完成。最后,全球互联网的兴起大大改变了传统的出版模式,网络上充斥的大量作品说明个人也拥有了在线出版的能力。 第二、信息技术的商业化进程及其与日常生活的大规模整合已经与传统的版权法律制度产生了强烈的碰撞。由于网络环境下对某些新出现的权利的认识模糊,个人在互联网上的一些行为如上传、下载、复制等,在不经意间就有侵犯版权的可能。尽管在前互联网时代版权界已经在计算机软件的保护中引入了版权保护技术措施,但直到网络时代这种手段的广泛应用才对现有的版权制度构成了强有力的挑战。互联网社会自诞生起就被认为不存在尊重权利的传统。在赛博空间Cyberspace里,与其说法律赋予作者的权利不够,不如说这些权利难以实现。 在数字化环境下,版权保护技术措施作为保护版权的有效手段受到了版权人的极力推动。因为数字技术使版权人越来越没有安全感,他们在传统版权制度中更多还原

【Abstract】 The material basis which copyright system depends on has changed fundamentally with the coming of network age. Information technology has stepped into the field of copyright and exerts profound influences which show mainly in two aspects:First, the technical progress has greatly improved the ability by which people duplicate, distribute, public, and control information. Digital technology makes it possible that almost all the words, images and sounds of the traditional writings can be expressed by zero and one (binary scale digital),so the cost of making-up reduced extremely, and the duplication is also as good as the script in quality. To some extent, this removes the obstacles met by the bootleggers in the simulation era. In addition, the appearance of network makes the speed of writings change fundamentally. The spread of information can complete by the speed of network transportation promptly. Finally, the rising has changed the model of publication greatly. Lots of writings on the network show that individuals have the capability issued on line.Second, commercialized process of information technology and extensive combining of daily life have produced strong collision. Because under the environment of the network the understanding of some emerging rights appears fuzzy, some individual behaviors on line such as uploading, downloading, duplicating etc. maybe infringe the copyright inadvertently. Though in ex-internet era copyright circle had introduced technical measures of copyright protection, the extensive application of such method did not form the powerful challenge to the existing copyright system until the network era. It is thought that network society is not to respect the tradition of the right since boring. In Cyberspace, it is better to say that these rights are difficultto realize than to say that it is not enough that the law is entrusted.Under the digitized environment, technical measures of copyright protection are mostly promoted by the owners of copyright as effective means to protect copyright. Because digital technology makes the owners of copyright fell less and less sense of safety and they can not get abundant legal protections in the system of traditional copyright, they have to seek private strength to relieve, that is to take technological measures in their works, especially digital works, to prevent others from contacting or using the works or recording or video products without permission. Self-sendee system, which the owners utilize technical measures to protect their interests, came into being under new technology environment. Technical measures may be destroyed or bypassed, so it has produced the demand for the legal protection, and reflected through the legislative motion provided by the copyright circle.Under its forceful push, technical measure is also admitted and protected by the international treaties and legislations from various countries. Forbid evading the technological measures has become a trend that countries all over the world legislate through revising the copyright law.However, technical measures of copyright protection are double-edged swords. While bringing good news to the owners of copyright, it will produce negative effects unavoidably. It has compressed the space of public’s rights virtually while protecting the owners’ interests of copyright effectively. For example public domain is occupied, protection deadline postponed, right -exhausted principle challenged, fair use for the public compressed and so on owning to technical measures. In a word, positive and negative effects which take into being as the copyright owners take the technical measures has already become the focus of the new-round legislations and modifying of laws for the countries all over the world. Developed countries and regions as U.S.A. and European Union, etc. have already taken the lead in answering to this question, and have carried on more systematic structure. The copyright law revised in 2001 and protection regulations of computers’ software taken into effect in 2002 also make provisions to a certain degree. It is undoubtedly of great advantage for perfecting legislation and administration of justice of the relevant fields of our country byanalyzing the characteristics of the technical measures of copyright protection and studying the modes adopted by international organizations and developed countries. This thesis is divided into five chapters to explain the relevant contents in details which is arranged as follows,Chapter one, explaining the concept of technical measure, including its definition and sorts, etc.Chapter two, studying the development trends of the technical measures of copyright protection in the world, finding out its generality and difference taking relevant technical measure of copyright protection in U.S.A., European Union and Australian as examples.Chapter three, analyzing and studying legal attributes, urgency, necessity and applicable conditions of technical measures of copyright protection.Chapter four, illustrating the legal conflicts caused by technical measures of copyright protection, by analyzing the conflicts between the technical measures of copyright protection and the system of fair use, public interests, first-selling principle . protection of individual privacy, freedom of expression, antitrust law etc.Chapter five, putting forward advices on such respects as the legislation and administration of justice which perfect the technical protective measures of copyright of our country, etc according to the real situation of our country, through systematically analyzing the positive and negative influences that the technical measures produce, and combining the attitudes toward technology protective measures and methods of the copyright in the world.I have collected and read a large number of treatises and materials, including English materials after selecting this topic, and combined closely with law theory studied at school together, and adopted research methods such as induction and deduction, illustrating with examples etc, and kept the works written in straightforward language. I try to draw some comparatively clear views by analyzing theory deeply as reference for the masses who are interested in the relative contents.更多还原