| 英文摘要 |
Interoperability, a technological term, can be legally defined, by the EU “computer programs” Directive (91/250/EEC), as the “ability to exchange information and mutually to use the information which has been exchanged”. At the implementation of technological protection measures (TPM) on copyrighted works, interoperability requires an accessibility of those digital works through any available accessing device in the market. However, the interoperability is not easy to be acquired in the industry. A conflict can be found in the “secret/ locked” purpose of TPM and the “open” purpose of its interoperability: TPM aiming more effective protection is likely to prevent the stakeholders who need the system’s interoperability from accessing source code of their TPM interface. Furthermore, the recent legislations of anti-circumvention clauses (prohibiting the circumvention of TPM) have sharpened the conflict to the extent that normal activities pursuing the interoperability would be banned by such clauses. The abuse of TPM de facto and of anti-circumvention clauses de jure also generates anti-competitive effects. Several legal solutions to obtain the interoperability of TPM may be possible. This study analyzes and distinguishes them into two groups. The first group refers to the self-help interoperability (chapter 2): the de-compilation or reverse engineering of a computer program, permitted by the copyright law as “fair use”, by which the user can use by itself to access to the source code of TPM, without any legal intervention. The second group consists in the procurement by public intervention (chapter 3). Solutions in the angle of competition law and consumer protection law may mitigate the anti-competitive effect of TPM. It is worth notice that the new French author’s right law (codified in the CPI and with its amendments of 2006 & 2009) introduced, for the first time in the world, a system of interoperability regulation by granting a “right to interoperability”.
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