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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 V Working Proposals of the Legal Treatment of Private Use in China: An Example of the “TPMs & Contract” Model

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Chapter V Working Proposals of the Legal Treatment of Private Use in China: An Example of the “TPMs & Contract” Model According to the institutional analysis approach to law, each institution has its merit and flaw to some extent. It is impossible to find the “best” institution but rather to search for the least imperfect alternative.929 In deed, after reviewing the other possible alternatives of “TPMs and contract” model, especially the pros and cons of each business model for content provision, I find it becomes more and more difficult to say which one is the best or which one is better than another. Therefore, basically, I have no right answer concerning the choice of business models.930 However, I do believe as long as we choose any model, certain social conditions should be met in order to be effective. In this section, I intend to choose “TPMs & contract” model as an example to illustrate the necessary modifications both in law and social infrastructure. I select it because compared to other options, the overprotection of TPMs in China is a prominent problem desiderated to be solved. In contrast, since there is no levy system within the Chinese copyright law, “levy system” model demands to introduce copyright levy into the statute. In respect of “device-centric” model, the problem of bundling sale is less urgent because it could have recourse to the anti-competition law or consumer protection law. Concerning “cloud” model, its prevalence depends on high Internet penetration, which is quite time-consuming in China. As...

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