Page 103 - 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 4 Formulating a Non-commercial UGC Access Levy Scheme
An Intermediary-oriented Approach

Chapter 4 Formulating a Non-commercial

UGC Access Levy Scheme

4.1 Introduction

Initially manifesting through wiki pages, blogs, open-source programs in the form of
text and computer software with non-commercial purposes, user-generated content (UGC)
has quickly extended to other categories of copyrighted works such as music sampling
and film vidding. With the flourishing of digital tools that amateurs use to (re-)create,
and widely available access to the Internet, large numbers of users who were previously
passive consumers are now empowered to actively engage in content production. This has
created the basis of a free culture, as Lawrence Lessig claimed. However, copyright law
1
2
poses significant obstacles to UGC creation, which is the problem Chapters 4 and 5 wish
to address. Specifically, this chapter proposes a non-commercial UGC access levy to help
UGC creators overcome access controls attached to pre-existing works to create UGC. The
levy scheme discussed in the next chapter aims at legalizing the creation of UGC based on
copyrighted works to which the UGC creator have gained authorized access. According
to Daniel Gervais, UGCs fall into three categories: (i) user-authored content, which is
originally created by the UGC creator without reproducing or transforming previous works;
(ii) user-derived content, which reproduces or transforms previous works but also contains
a certain amount of creative effort by the UGC creator; and (iii) user-copied content, which
reproduces a pre-existing copyrighted work without adding new content but changes the
3
distribution. Since user-authored-content does not involve the use of pre-existing copyright
works, the proposed levy schemes only cover user-derived-content and user-copied-content.
The inaccessibility of copyrighted works can be attributed to the anti-circumvention
rule, which allows copyright owners to attach technological protection measures (TPMs),
such as passwords, authorization codes and encryptions, to prohibit unauthorized users from
accessing works. The anti-circumvention rule differs across national copyright regimes.
However, I mainly focus on US law. The primary reason is that the US is the country that

1 Lawrence Lessig, The Future of Ideas: The Fate of the Commons in A Connected World (Random House 2001) 9.
2 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (Penguin 2008) Henry Jenkins,
Convergence culture: Where old and new media collide (NYU press 2006) Daniel Gervais, ‘The Tangled Web of UGC:
Making Copyright Sense of User-Generated Content’ (2008) 11 Vanderbilt Journal of Entertainment & Technology Law 841,
841.
3 Gervais (n 2) 858. Gervais regards user-copied-content as an independent category of UGC because transformation
of distribution channel and transformation of context can be regarded as fair use under the expansive interpretation of
‘transformative use’.

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