Abstract

Since the appearance of copyright law, we have been trying to define the boundaries of economic rights in copyright and search for the focal point of copyright functions by regulating the use of works. In traditional theories and social practice of copyright, economic interests of copyright owners are mainly realized by regulating competitors'exploitation of works. Commerciality and public-private features of the use of works should be regarded as highly important criteria of copyright infringements. This can not only make the ripple effect on creation of works and further cultural boom, but also accelerate free dissemination of culture, knowledge acquisition and self-development of users by reserving indispensable space for the public. As a result, it can keep interests balance between copyright owners and the public. From the negative perspective of copyright protection, that is what are not protected by copyright law, personal use serves as a focal point in drawing the boundaries of 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 use has become the most controversial field of copyright law nowadays. However, the indispensable space and legality of personal use tend to decline because expanding copyright protection is squeezing the limited space where users have access to and share information freely. This consequence is not aroused by the development of technology, but the closed copyright system 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 solution for personal use issues, but also reshape theoretical vision of copyright protection in the digital age. The paper falls into five chapters with more than 180000 words besides the preface.

ChapterⅠis the introduction and definition of personal use. Part one discusses the legislative situation and historical development of personal use in copyright by examining statutory details about personal use in international conventions, international model laws, EC Directive and domestic laws of representative countries. Part two analyses public value and private value of personal use by means of axiology of social relations. In public politics of Jurgen Habermas, Public Sphere does not only relate to public negotiations concerning political 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 public value and private value exist in personal use. When analyzing the value of personal use, we can not disregard the relationship of different parties. Copyright owners and users are participants of the ecological relationship of copyright. When copyright owners are going to achieve their economic interests, they ought to consider interests of others and the public. In the ecological relationship of copyright, the overexpansion of copyright owners' interests is unreasonable. After making a distinction between personal use and private use and commenting on several viewpoints on personal use, Part three tries to define personal use from four aspects, namely, subject, range, motivation and types of behaviors. In terms of types of behaviors, we should distinguish personal use in social practice from personal use in copyright law. In copyright law, personal use refers to the reproduction, translation, adaptation or other transformative use of copyrighted works in family and other private spheres similar to family for a natural person's own personal and private use.

ChapterⅡanalyzes the dilemma of personal use in digital technology age and the relationship between technological development and the dilemma of personal use. The development of digital technology, especially that of the Internet, can promote the free flow of information in public. On the other hand, because of their development, copyright infringements are changing from professional to non-professional and becoming popular. The judgment of copyright infringements shouldn't exaggerate the negative influence of personal use on interests of copyright owners in the digital environment. In fact, only the unauthorized dissemination of works has a substantial damage on interests of copyright owners. On the contrary, the digital technology unprecedentedly controlled by human beings has been impeding the free flow of information. Under the structural control system including digital technology, the abuse of autonomy of will and the expansion of copyright, the limited sphere of personal use is squeezed severely. If we ignore individual incidents only for verifying the law of history, haphazards in history will become law. As far as the relationship between technological development and dilemma of personal use is concerned, we should avoid the overreliance on technological determinism and absolutization of historical law. Otherwise, we may reach the absurd conclusion that personal use ought to be squeezed with the development of digital technologies. It is high time that we discard the narrative style of historical story. After recognizing the causal connection between developing technology and dilemma of 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 the closed copyright system resulting in the dilemma of personal use. The squeezed personal use is not an inevitable result of technological development, but a consequence of the closed copyright system dominated by Euramerican developed countries. This part explains the view from the following aspects. First, Neoliberalism Economics such as the Chicago School Economics has dominated in western economics and caught on around the world since 1980s.It leads developed countries to place extra emphasis on the economic role of copyright regimes and causes the overemphasis of protective idea of copyright on Market Determinism of Neoliberalism Economics. However, there are inherent limitations in the ideas of Neoliberalism Economics. It can hasten extreme self-interested actions in laissez-faire market mechanism and violate the primary purpose of copyright law, which is to realize the greatest wellbeing of most people. For that, the ideology of Adam Smith changed from market liberalism to virtue constructivism at his later years. It is clear that in his old age Adam Smith came to realize the inconsistency between self-interest and public interest. Second, copyright policy-making in Euramerican developed countries is also an compression implementation process from top to bottom under the influence of private interest groups' strategic action especially those of monopoly enterprises, which is another cause behind the closed copyright system resulting in the dilemma of personal use. Because the bargaining power of social groups such as users group is different from the monopoly enterprises in groups politics. It is difficult for users group to take part in the policy-making of copyright. Copyright policy-making in reshaping international conventions system is also difficult, which can be explained by the Public Choice Theory of Mancur Olson. Third, one-dimensional discourse system composed of Metaphorical symbols and Post Hoc propaganda has been advertising misleadingly that high protection of copyright is helpful to developed countries and more beneficial to developing countries. This viewpoint, based on Neoliberalism Economics, is different from evolution economics theory adopted by these developed countries in their economic-overtake period. Therefore, abiding by the minimum standard of copyright protection, developing countries such as China ought to explore actively one new path for copyright protection in line with their own national conditions and not blindly follow developed countries.

Chapter Ⅳ indirectly discusses the orientation of copyright law by introspecting and reconstructing the copyright protection system with the view to relieving the dilemma of personal use in the digital environment. Through analyzing from three perspective of abstraction, intellectual products and free information, works have public features such as intangibility, absent scarcity, non-excludability, positive externality and interactivity. The instrumental roles of copyright system is manifested in efficiency, incentive and limited return. The legislative purpose and policy connotation of copyright law is to realize the maximization of social value rather than the maximization of market value in works based on individual utility. The focal-point structure of copyright functions indicates that the exclusive power of copyright is directed to some use of works rather than works themselves. As far as economic rights system of copyright is concerned, we should reshape the theoretical foundation of copyright from traditional copy right centricity to dissemination right centricity. The dissemination right centricity of copyright system can more clearly draw the boundaries of economic rights in copyright and establish behavioral norms for realizing the property interests of copyright owners. On the other hand, it can eliminate reverse psychology of the public 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 the closed trend in Euramerican developed countries resulting from their respective fair use principle and three-step test and design a real“open safety valve”. With the development of P2P technologies, especially that of Bit Torrent technology, downloading of users constitutes a combinative behavior between personal copying and dissemination in network environment. Therefore, all end users of P2P could be copyright infringers who disseminate copyrighted works without permit. Judging from the tendency of legal practice in Euramerican developed countries, the focal point of liability subjects have been changing from network intermediaries to private users, which can be seen in Capitol Records, Inc. v. Jammie Thomas in U. S. A and HADOPI of France. As an interests allocation mechanism, copyright law ought to emphasize the partnership among all subjects involved and be based on the rational allocation and harmonization of all parties' interests. By synthesizing compulsory licensing, voluntary collective licensing, mass licensing and so on, the digital dilemma of personal use in P2P technological environment can possibly turn into a reciprocal cooperation situation from a zero-sum game.

ChapterⅤtries to reconstruct copyright law in order to relieve the dilemma of personal use. At the conceptual level of copyright law, statutory right theory of instrumentalism is technique 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 social responsibility for public welfare. Meanwhile, users' rights are the concretization of constitutional basic rights in copyright law. Copyright law should be regarded as the law of copyright owners and the law of users. Both economic interests of copyright owners and users' rights are important parts of the ecological relationship of copyright. Furthermore, we should uphold the principle of technology neutrality that requires us to observe the law of development and interior characters of technology, to integrate market behaviors with ethical responsibility and to pay close attention to polynary social values such as public welfare, democratic politics, cultural freedom and technological innovation in order to develop technology in a direction that enhance cultural boom and meet human needs. At the institutional level of copyright law, we should define the commerciality and public-private distinction of works behaviors reasonably. Moreover, it is necessary to eliminate legislative defects in anti-circumvention rules so as to reduce misuse of self-help remedy. Due to the distinction between digital condition and analog environment, it is helpful to adopt the double-track administrative structure. We ought to weaken the exclusive functions of copyright especially as reproduction right and rearrange the dual structure of property and liability rules in digital environment by gradually changing the focal point of copyright protection from possession power to gains purpose and from property rules to liability rules.

Keywords: personal use; digital technologies; Neoliberalism; economic rights of copyright; social value