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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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With the use of works by individual users for their own study, research, or self- entertainment purposes, 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 as well as the ultimate objective of the Chinese copyright law in maintaining the public interest. Private use is limited to the enjoyment of works rather than their exploitation, thus it is basically outside of the scope of copyright. Only when one wishes to make a copy does private use intersect with copyright. Given the fact that the act of copying itself is physically the same, the separation of private use from piracy fully depends on a context-based determination. In sum, private use refers to noncommercial use within the private domain, while piracy denotes commercial use in the market place. Furthermore, when determining whether a particular use is noncommercial private use or not, we need a sensitive and careful evaluation to weigh the impact of a particular use on copyright incentives and liberties, and adopt a restrictive interpretation of private domain limited to family members and close friends. This book has critically evaluated the legal treatment of private use under Chinese digital copyright law, which provides overprotection for TPMs and abandons the private use limitation on digital copyright. Such a treatment in fact serves as an anti-piracy measure. However, it confuses private use with piracy,...

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