論禁止規避技術措施的範圍

On the Scope of the Prohibition of Circumvention of Technological Measures

雖然國際條約要求締約方制止規避技術措施的行為，但對禁止規避的範圍，各國有不同理解和做法。考慮到國際條約的立法原意和提供規避手段造成的嚴重後果，我國沒有必要禁止直接規避技術措施的行為，因為直接規避技術措施行為並非對著作權的直接或間接侵權，禁止直接規避行為缺乏實際意義而且很難執行。不禁止直接規避行為可以為“合理使用”留下適當空間，是符合我國國情的合理選擇。

The international copyright treaty requires contracting states to prohibit the circumvention of technological measures. However, in the respect of the prohibition scope, there are different provisions in different countries. Given the legislative purpose of the international treaty and the serious adverse impact of providing means to circumvent the technological measures, it is justified for China to prohibit the provision. It is not necessary, however, for China to prohibit the act of direct circumvention since such an act is not a direct or indirect infringement of copyright, and the infringing acts followed the circumvention have been regulated by the current copyright law. In addition, the prohibition against the direct circumvention is difficult to be implemented. A copyright law that does not prohibit the act of direct circumvention is not only consistent with the international copyright law, but also leaves the room for fair use of works.