作为社会规范的技术与法律的协调——中国反技术规避规则检讨

The Harmonization of Law and Technology as Social Norms: An Examination of Anti-Infringement Rules in relation to Technology in China

当今世界,技术成为社会规范的现象日益普遍。技术与法律相互依存,在全社会的规模上调整着人们的行为,参与财产、利益和各种权利、权力的分配。技术作为社会规范发挥效用较之法律具有更为直接、准确、经济、高效的优势。但技术作为社会规范也有局限性,过分依赖技术来实施法律容易损害法律本身的尊严,而对技术的运用不加限制则会改变法律所追求的权利分配格局。技术保护措施作为数字版权政策的重要执行工具,既应当受到反技术规避规则的保护,也应当受到它的限制。美国和欧盟过于严厉的规则在给版权人提供强大保护的同时也带来了一些负面效应。中国的反技术规避规则不仅失之模糊,而且某些内容的合法性和合理性也值得商榷。

In today's world, technology increasingly functions as a social norm. Together with the law, it regulates people's behavior and participates in the distribution of property, power, rights and interests of the whole society. Compared with the law, technology is more direct, accurate, economical and efficient as a social norm. However, it has its own limitations. Too much dependence on technology as an instrument of law enforcement may endanger the law itself; arbitrary application of technology may change the distribution of rights and interests which the law seeks to address. Measures to protect technology are important instruments in the enforcement of digital copyright policy. They should be protected and limited by anti-infringement regulations. The overly stringent anti-infringement regulations in the United States and the European Union provide strong protection to copyright holders on the one hand; but result in some negative effects on the other hand. The anti- infringement regulations in China are too vague; some provisions are even questionable in terms of their legality and reasonability.