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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 III Pros and Cons: Debates on Employing TPMs to Control Private Use in the Digital Environment

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Digital technology and Internet networks have led to a “digital dilemma”. On the one hand, they have greatly facilitated the transmission of information and enriched end users’ enjoyment. On the other hand, however, they have diminished the control of right holders over their copyrighted works.427 Given the fact that the abolishment of the private use limitation in the Chinese digital copyright framework as an anti-piracy measure is not a sound choice, in this chapter, I intend to explore the right place for private use in the digital copyright regime. I will start with the boundary between copyright exploitation and private use enjoyment. Then I will discuss the efforts to harmonize TPMs and private use from both the legislative and judicial perspectives, as well as the tit-for-tat debates on employing TPMs to control private use. Finally, I will employ the objective of the Chinese copyright law to evaluate the TPMs control and private use. 3.1 Locating the Boundary between Exploitation and Enjoyment As mentioned above, private use is the use of works by individual users for their own study, research, or self-entertainment purposes, such as reading a book, singing a song, and watching a movie on television. On account of its being limited to the enjoyment of works and not their exploitation, private use has traditionally been outside of the scope of copyright. Private use is, however, notoriously uncertain both in theory and in application. Given the fact that the copying itself, be it in a private use context or a...

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