後DMCA時代著作權法下公益之探尋

Search for Public Interests in the Post-DMCA Era – Establishing the Anticircumvention Misuse Doctrine Exploring Computer Forensics

自美國一九九八年數位千禧年著作權法（Digital Millennium Copyright Act, DMCA）頒布施行以降，該法第一二○一條之反規避條款即成為美國學界與實務界最具爭議之議題。蓋在數位環境下，著作之非法重製與散佈變得輕而易舉，反規避條款之制定可讓著作權人在法律的幫助下，自行設置科技保護措施，有效限制對其著作物所為之接觸行為，對著作權人而言，反規避條款儼然成為其在數位環境下，可用以操控其數位著作之最有力的新權利—超著作權（Para-copyright）。然而此一著作權人的新權利，也使得一般社會大眾開始憂心“計次付費＂（Pay-Per-Use）的世界即將來臨，合理使用原則恐將蕩然無存。除此之外，在與傳統著作權法的交相利用下，反規避條款竟被著作權人作為用以擴張其著作權，進而達到限制競爭的目的。有鑑於此，美國學者開始提倡「反規避濫用原則」（Anti-circumvention Misuse Doctrine）的適用，希望藉此一延用自專利法上之濫用原則的適用，能減輕反規避條款對與著作權相關之市場所帶來的衝擊。

In the modern information era, facilitated by the encompassed high technologies, reproducing and distributing illegitimate copies of copyrighted works in the digital forms can be easily accomplished by average users, and this fact is dramatically endangering the copyright owner’s rights and interests. However, with the enactment of anticircumvention provision, copyright owners can self-help with the technological measures that effectively control the access to the works protected by copyright. Furthermore, this legislation in fact creates a wholly new right for copyright owner – “The Access Right.” The continual expansion of copyright protection to all possible subject matters and restrictions to all kinds of potential use of copyrighted works thus adversely impact the general users. Yet, users’ privileges have been more restricted in the post-DMCA era than those in the old days, which definitely make the situation worse.
Despite limited exemptions are sanctioned under the anticircumvention provision, this legal protection of technological measures as such permits proprietary control over any kind of information, whether protectable or not under the copyright law, which granting the content provider what might be considered as a “Paracopyright” without the built-in limitations and restrictions of traditional copyright law, such as the fair use doctrine and first sale doctrine. As a result, the public are concerning about the in coming World of Pay-Per-Use, and the traditional limitations on copyright, specifically speaking, the fair use doctrine, may unavoidable evaporated under such a new legislation. Moreover, some recent cases revealed that anticircumvention provision has been utilized by some copyright owners as a means to restrain trade and competition. In this regard, the distorted balance is not between the conflicting interests of the owners and the users of copyrighted works, but the balance between the conflicting interests of the owners of copyrighted works and the general public who expect more, better, and cheaper copyright related products. In light of this situation, scholars in the U.S. began to discuss and advocate the “Anticircumvention Misuse Doctrine,” hoping this affirmative defense, which evolved form the patent law, can mitigate the impact caused by anticircumvention provisions to the copyright related markets.