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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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Chapter I The Legal Treatment of Private Use under Chinese Copyright Law

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The People’s Republic of China promulgated its first copyright law and implementing regulations in 1990.59 Although possessing several limitations, the 1990 Chinese Copyright Law was recognized as a “successful and modern” law that could provide the foundation of a legal framework for copyright protection in China.60 According to the law, the National Copyright Administration (NCAC) of the People’s Republic of China is the competent authority in charge of administrative and enforcement matters related to copyright.61 With years of development, China has been gradually improving its system of laws and regulations on copyright, and constantly strengthening their level of enforcement. In order to adapt to international requirements for the protection of intellectual property rights (hereinafter IPRs), China amended the copyright law in 2001 and reissued its implementing regulations.62 In 2010, the copyright law was revised again but only slightly.63 Soon, the preparation work on the third amendment of the copyright law began on July 13, 2011. 59 Copyright Law of the People’s Republic of China was adopted on Sep. 7, 1990 at the 15th Session of the Standing Committee of the 7th National People’s Congress [hereinafter the 1990 Chinese Copyright Law]. See also Regulations for the Implementation of Copyright Law of the People’s Republic of China. It was promulgated on May 30, 1991, and effective on Jun. 1, 1991 by the National Copyright Administration [hereinafter the 1991 Chinese Copyright Law Implementing Regulations]. 60 See Wei Zhi, Cong bo’er’ni gongyue kan zhongguo zhuzuoquan fa zhi xiuding [An Evaluation on the Revision of...

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