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Taking Private Use Seriously

A Critical Evaluation of the Legal Treatment of Private Use under Chinese Digital Copyright Law

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Zhong Zheng

Private use is full of uncertainty both in theory and in application. Given the fact that the copying itself, whether in a private use context or a piracy context, is physically the same, it is very easy to confuse private copying with piracy. However, private use serves an important role not only relating to users’ fundamental rights such as free speech and the right of autonomy and privacy, but also in contributing to the creative process by fostering creativity-relevant human capital. This book critically evaluates the legal treatment of private use under Chinese digital copyright law, which provides overprotection for Technological Protection Measures (TPMs) and abandons the private use limitation on digital copyright. It also examines the underlying causes and possible solutions.

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Introduction

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Private use is full of uncertainty both in theory and in application. It would not be an exaggeration to say that private use is one of the most difficult issues in the copyright field to tackle. It looks trivial and marginal and people usually take it for granted. Given the fact that the copying itself, whether in a private use context or a piracy context, is physically the same, it is very easy to confuse private copying with piracy. It is also a fact that a particular instance of private copying might itself substitute for the purchase of a copy and thus diminish the income of the copyright holder. On the other hand, however, the two are different in essence. Private copies are used for non-commercial private purposes and limited to the private sphere, while pirated copies enter into public distribution and are normally for commercial exploitation. The difficulty, however, is in how to separate them in practice. In addition, private use is a very important issue which refers to the backbone of the copyright system. How to keep a delicate balance between the interests of copyright holders in the exploitation of their copyrighted works and the benefits of users in the enjoyment of these works is the everlasting fundamental task of copyright law. The private use issue actually deals with the individual users’ legitimate interests in using copyrighted works. Regrettably, at present there is not a flourishing field of literature focusing on this specific subject like there is in...

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