著作權法三振條款制度對著作權平衡保護的影響The Impact of Graduated Response on the Copyright Protection from the View of Balanced Interest
Keywords：copyright law, graduated response, three strikes, copyright alerts, DMCA safe harbors
It has been widely acknowledged that disconnection of Internet access is an invasionof fundamental right. Recently the media and entertainment industries were seeking the selfregulatory measures or legislation to curtail the litigations of copyright infringement online. The “Graduated Response” was introduced in 2008 by the right owners jointly with ISPs to implement the measure of Internet disconnection on the repeated infringers. This measure has been criticized for it is lack of due process and proportionality. In July 2011, the big labels and ISPs jointly adopted “Copyright Alert System” and asserted to send multiple notices to the alleged infringer. In spite of not required implementing the disconnection of Internet, ISPs maypunish accused subscribers by the “mitigation measures.” ISPs are gradually partial to the right owners due to the safe harbors stipulated in the Digital Millennium Copyright Act of 1998. The room for users to fairly use and sharing are reduced and thus the balanced relationship among right owners, ISPs and users has been destroyed. This paper is to discuss how to preserve the public/private interests of knowledge flow and infringement combat and how to build up a wellbalanced copyright protection, so as to discover the core meaning of copyright.