On Personal Use In Economic Rights System Of Copyright Law

Since the appearance of copyright law, we have been trying to define the boundaries ofeconomic rights in copyright and search for the focal point of copyright functions byregulating use of works. In traditional theories and social practice of copyright, economicinterests of copyright owners are mainly realized by regulating works exploitation ofcompetitors. Commerciality and public-private distinction of works behaviors should beregarded as highly important criteria of copyright infringements. This can not only make theripple effect on creation of works and further cultural boom, but also accelerate freedissemination of culture, knowledge acquisition and self-development of users by reservingindispensable space for the public. As a result, it can keep interests balance between copyrightowners and the public. From the negative perspective of copyright protection, that is what arenot protected by copyright law, personal use serves as a focal point in drawing the boundariesof economic rights in copyright.With the development of digital technologies, especially that of the Internet technology,so-called negative impact of personal use on copyright owners is exaggerated. Personal usehas become the most controversial field of copyright law nowadays. However, theindispensable space and legality of personal use tend to decline because expanding copyrightis squeezing the limited space where users have access to and share information freely. Thisconsequence is not aroused by the development of technology, but the closed copyrightsystem propelled by human factors. We can understand this by means of political economics.Faced with the dilemma in personal use, we should not only find free egress for personal useissues, but also reshape theoretical vision of copyright protection in the digital age.The paperfalls into five chapters with more than180,000words besides the preface.ChapterⅠis about the introduction and definition of personal use. Part one discusses thelegislative situation and historical development of personal use in copyright by examiningstatutory details about personal use in international conventions, international model laws, ECDirective and domestic laws of representative countries. Part two analyses public value andprivate value of personal use by means of axiology of social relations. In public politics ofJurgen Habermas, Public Sphere does not only relate to public negotiations concerningpolitical affairs, but also to the collective shaping of citizens’ cultural life. The private sphere of personal use intensifies the ripple effect on works and promotes cultural boom. Both publicvalue and private value exist in personal use. When analyzing the value of personal use, wecan not disregard the relationship of copyright parties. Copyright owners and users areparticipants of the ecological relationship of copyright. When copyright owners are going toachieve their economic interests, they ought to consider interests of others and the public. Inthe ecological relationship of copyright, the overexpansion of copyright owners’ interests isunreasonable. After making a distinction between personal use and private use andcommenting on several viewpoints on personal use, Part three tries to define personal usefrom four aspects,namely, subject, range, motivation and types of behaviors. In terms of typesof behaviors, we should distinguish personal use in social practice from personal use incopyright law. In copyright law, personal use refers to the reproduction, translation, adaptationor other transformative use of copyrighted works in family and other private spheres similarto family for a natural person’s own personal and private use.Chapter Ⅱanalyzes the dilemma of personal use in digital technology age and therelationship between technological development and the dilemma of personal use. Thedevelopment of digital technology, especially that of the Internet, can promote the free flow ofinformation in public. On the other hand, because of their development, copyrightinfringements are changing from professional to non-professional and becoming popular. Thejudgment of behaviors of works as copyright infringements shouldn’t exaggerate the negativeinfluence of personal use on interests of copyright owners in the digital environment. In fact,illegal dissemination of works has a substantial influence on interests of copyright owners. Onthe contrary, the digital technology unprecedentedly controlled by human beings has beenimpeding the free flow of information. Under the structural control system including digitaltechnology, the abuse of autonomy of will and the expansion of copyright, the limited sphereof personal use is squeezed severely. If we ignore individual incidents only for verifying therule of history, haphazards in history will become rules. As far as the relationship betweentechnological development and dilemma of personal use is concerned, we should eschew theoverreliance on technological determinism and absolutization of historical rules. Otherwise,we may reach the absurd conclusion that personal use ought to be squeezed with thedevelopment of digital technologies. It is high time that we discard the narrative style of epicstory. After recognizing the causal connection between developing technology and dilemmaof personal use, we should introspect the value bias and negative influences brought by technology and copyright system due to human behaviors.Chapter Ⅲ, by means of international political economics, discusses causes behind theclosed copyright system resulting in the dilemma of personal use. The squeezed personal usesis not an inevitable result of technological development, but a consequence of the closedcopyright system dominated by Euramerican developed countries.This part explains the viewfrom the following aspects. First, Neoliberalism Economics such as the Chicago SchoolEconomics has dominated in western economics and caught on around the world since1980s.It leads developed countries to place extra emphasis on the economic role of copyrightregimes and causes the overemphasis of protective idea of copyright on Market Determinismof Neoliberalism Economics. However, there are inherent limitations in the ideas ofNeoliberalism Economics. It can hasten extreme self-interested actions in laissez-faire marketmechanism and violate the primary purpose of copyright law, namely, to realize the greatestwellbeing of most people. For that, the ideology of Adam Smith changed from marketliberalism to virtue constructivism in his old age. It is clear that in his old age Adam Smithcame to realize the inconsistency between self-interest and public interest. Second, copyrightpolicy-making in Euramerican developed countries is also an compression implementationprocess from top to bottom under the influence of private interest groups’ strategic actionespecially those of monopoly enterprises, which is another cause behind the closed copyrightsystem resulting in the dilemma of personal use. Because the bargaining power of socialgroups such as users group is different from the monopoly enterprises in groups politics, usersgroup is difficult to take part in the policy-making of copyright. Copyright policy-making inreshaping international conventions system is also difficult, which can be explained by thePublic Choice Theory of Mancur Olson. Third, one-dimensional discourse system composedof Metaphorical symbols and Post Hoc propaganda has been advertising misleadingly thathigh protection of copyright is helpful to developed countries and more beneficial todeveloping countries. This viewpoint, based on Neoliberalism Economics, is different fromevolution economics theory adopted by these developed countries in their economic-overtakeperiod. Therefore, abiding by the minimum standard of copyright protection, developingcountries such as China ought to explore actively one new path for copyright protection inline with their own national conditions and not blindly follow developed countries.Chapter Ⅳindirectly discusses the orientation of copyright law by introspecting andreconstructing the copyright protection system with the view to relieving the dilemma of personal use in the digital environment. Through analyzing from three perspective ofabstraction, intellectual products and free information, works have public goods propertiessuch as intangibility, absent scarcity, non-excludability, positive externality and interactivity.The instrumental roles of copyright system is manifested in efficiency, incentive and limitedreturn. The legislative purpose and policy connotation of copyright law is to realize themaximization of social value rather than the maximization of market value in works based onindividual utility. The focal-point structure of copyright functions indicates that the exclusivepower of copyright is directed to some behaviors of works rather than works themselves. Asfar as economic rights system of copyright is concerned, we should reshape the theoreticalfoundation of copyright from traditional copy right centricity to dissemination right centricity.The dissemination right centricity of copyright system can more clearly draw the boundariesof economic rights in copyright and establish behavioral norms for realizing the propertyinterests of copyright owners. On the other hand, it can eliminate reverse psychology of thepublic due to their misunderstanding of copyright law and lead the public to acknowledge,accept and obey copyright law. In terms of copyright restrictions system, we should avoid theclosed trend in Euramerican developed countries resulting from their respective fair useprinciple and three-step test and design a real "open safety valve". With the development ofP2P technologies, especially that of Bit Torrent technology, downloading of users constitutesa combinative behavior between personal copying and dissemination in network environment.Therefore, all end users of P2P could be copyright infringers who disseminate copyrightedworks without permit. Judging from the tendency of legal practice in Euramerican developedcountries,, the focal point of liability subjects have been changing from networkintermediaries to personal users, which can be seen in Capitol Records, Inc. v. JammieThomas in U.S.A and HADOPI of France. As an interests allocation mechanism, copyrightlaw ought to emphasize the partnership among all subjects involved and be based on therational allocation and harmonization of all parties’ interests. By synthesizing compulsorylicensing, voluntary collective licensing, mass licensing and so on, the digital dilemma ofpersonal use in P2P technological environment can possibly turn into a reciprocal cooperationsituation from a zero-sum game.Chapter Ⅴtries to reconstruct copyright law in order to relieve the dilemma of personaluse. At the conceptual level of copyright law, statutory right theory of instrumentalism istechnique phenomenon rather than the intrinsic spirit of copyright. In line with the intrinsic spirit of copyright, copyright law should construct the moral philosophy foundation of socialresponsibility for public welfare. Meanwhile, users’ rights are the concretization ofconstitutional basic rights in copyright law. Copyright law should be regarded as the law ofcopyright owners and the law of users. Both economic interests of copyright owners andusers’ rights are important parts of the ecological relationship of copyright. Furthermore, weshould uphold the principle of technology neutrality that requires us to observe the law ofdevelopment and interior characters of technology, to integrate market behaviors with ethicalresponsibility and to pay close attention to polynary social values such as public welfare,democratic politics, cultural freedom and technological innovation in order to developtechnology in a direction that enhance cultural boom and meet human needs. At theinstitutional level of copyright law, we should define the commerciality and public-privatedistinction of works behaviors reasonably. Moreover, it is necessary to eliminate legislativedefects in anti-circumvention rules so as to reduce misuse of self-help remedy. Due to thedistinction between digital condition and analog environment, it is helpful to adopt thedouble-track administrative structure. We ought to weaken the exclusive functions ofcopyright especially as reproduction right and rearrange the dual structure of property andliability rules in digital environment by gradually changing the focal point of copyrightprotection from possession power to gains purpose and from property rules to liability rules.