Page 101 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 3 Copyright Rules for Online Intermediaries: From Safe Harbour to a New Intermediary Liability Scheme
An Intermediary-oriented Approach

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incorporated into UGCs. Although the UGC platforms have not yet attracted many lawsuits
from UGC creators, UGC platforms are at high risk for violating copyright law, contract law
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and competition law due to their use and control of UGCs. The proposed UGC platform-
oriented regime also keeps up with the business practice in which some UGC platforms have
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taken the initiative to filter infringing content and remunerate both copyright owners and
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UGC creators. It is time to institutionalise such a private arrangement.
3.5 Conclusions

The safe harbour doctrine was designed for client-server networks because they played
a passive role in transmitting, caching, hosting and locating content, and could control
infringement by deleting the infringing information from the server. Through stringent
standards establishing secondary liability, the safe harbour doctrine has provided generous
breathing space for the development of network technology, and has therefore been
recognised as the Magna Carta of the Internet. Nevertheless, the new technologies prompted
by the safe harbour doctrine have posed challenges to the old rule, by democratising the
ability to distribute and produce copyrighted content, increasing the cost of copyright owners’
extra-legal privilege to enforce copyright and introducing new types of online intermediaries
that play an active role in managing and profiting from content. The re-intermediation of
UGC platforms has inherently corresponded to the development of the creative industry. As
Ori Brafman and Rod Beckstrom observed, centralisation and intermediation are necessary
steps for any new industry to take if it wants to make profits. As one of the most significant
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intermediaries in the UGC industry, UGC platforms have played a vital role in transforming
UGC from an amateur non-profit activity to a lucrative copyright business.
Due to the inapplicability of the safe harbour doctrine to the new technologies and
the lack of other effective rules addressing the liability of the active online intermediaries,
copyright owners have shifted their strategy to target end users. This has resulted in a lose-
lose situation. Copyright owners have failed to enforce copyright due to the high cost of

277 Section 3.4.1.
278 More discussion in Chapters 6 and 7.
279 See supra notes 262-266 and accompanying text.
280 Kindle Worlds, a fanfiction platform, has secured a licence for some books for fans to create fanfictions without the risk of
infringing copyright. (Kindle Worlds) <https://www.amazon.com/gp/feature.html?ie=UTF8&docId=1001197421> accessed
12 June 2019); Sony Music entered into an agreement with Remix Hits and Dubset to distribute royalties to UGC creators
and prior copyright owners. (Yahong Li, ‘The Age of Remix and Copyright Law Reform’ (2019 forthcoming) 12 Law,
Innovation and Technology 31 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3316523> accessed 15 April 2019).
Some Chinese UGC platforms have voluntarily sought licences from copyright owners because copyright compliance is for
the benefit of UGC platforms. (Jyh-An Lee, ‘Tripartite Perspective on the Copyright-Sharing Economy in China’ (2019) 35
Computer Law & Security Review 1, 19.).
281 Ori Brafman and Rod A Beckstrom, The Starfish and the Spider: The Unstoppable Power of Leaderless Organizations
(Penguin 2006) 97.

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