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Taking Private Use Seriously

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


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 II Private Use and the China Piracy Battle


In order to solve a certain problem, we need to expose its real causes or ultimate factors. Arguably, the anticipated purpose of not having a private use limitation in the Chinese TPMs framework is as an anti-piracy measure. However, it is in fact a “wrong remedy” against piracy. On the one hand, it fails to catch the deep-seated causes of the piracy dilemma in China. There are a range of factors known as “blocks” hindering the settlement of the long term piracy problem in China. These are to be found in the law making process, the implementation of the law, the level of adherence to the law, and also in the market. On the other hand, private use and piracy are different in essence.201 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. In this section, I first explore the legislative background behind the exclusion of a private use limitation from the digital copyright framework, and further investigate the real causes of the piracy dilemma in China. 2.1 Legislative Background of the Chinese Digital Copyright System Compared with what the law is, perhaps a more important investigation should focus on why the law regulates in the way it does. This section examines the legislative background of the 2006 Transmission Regulation which forms the main body of the Chinese digital copyright regime. 2.1.1 Great Pressure Against China’s Piracy As Hillary Clinton declared during...

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