Page 104 - 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

first gave birth to the anti-circumvention clause and introduced the idea into international
treaties, namely the WIPO Copyright Treaty (WCT) and the WIPO Performances and
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Phonograms Treaty (WPPT), to force the US Congress and other countries to adopt it. In
addition, the US has chosen to impose the most stringent version of the anti-circumvention
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rule, which indicates that the proposed levy scheme made for the US law can also address
the anti-circumvention clauses of other countries.
The anti-circumvention clause grew out of Internet copyright law in response to the
digital revolution, which decentralised the ability to exploit copyrighted works from
professional intermediaries to individual users. Traditional copyright, namely the right to
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reproduction, distribution and preparing derivative works, public performance and public
display, could only provide ex-post remedies by targeting a small number of defendants
after an infringement had occurred. The access control right, as Section 4.2 discusses, has
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significant value because it provides copyright owners with ex-ante preventive measures
against unauthorized access and use. However, widespread concerns and debates have arisen
over the impact of the access control right on free speech, the exclusion of fair use and the
chilling effects on technological advancements. Section 4.3 suggests that controversies
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over the access control right originated with the Internet copyright law’s strategy of
exempting online intermediaries and targeting end users. In Section 4.4, I introduce a non-

4 The Clinton Administration's Information Infrastructure Task Force released a ‘White Paper on Intellectual Property and the
National Information Infrastructure (NII White Paper)’ in 1995 which recommended the enactment of "anti-circumvention"
rights to condemn the circumvention of TPMs. (S. Rept.105-190, at 11 (1998). OCT. 28, Randy Elfred, ‘Oct 28, resident
Signs New Copyright Law’ (Wired, 27 October 2008) <https://www.wired.com/2008/10/oct-28-1998-president-signs-
new-copyright-law-2/> accessed 19 May 2019) Substantially basing on the NII White Paper, DMCA was considered too
controversial when first introduced in Congress in 1996. Despite the failure to in the domestic table, the US successfully
incorporated the anti-circumvention rule to two significant international digital copyright treaties, WIPO Copyright Treaty
(‘WCT’) and the WIPO Performances and Phonograms Treaty (‘WPPT’) through diplomatic approach. In this way, every
WIPO member state is required to prohibit the circumvention of TPMs in their national laws. US also endeavored to make
multilateral and bilateral agreements, such as the North American Free Trade Agreement (NAFTA), Australia – Us Free
Trade Agreement (AUSFTA) and US-Korea Free Trade Agreement (KORUS), to ensure the wide adoption of the anti-
circumvention clause. Stephen R. Tully, ‘Free Trade Agreements with the United States: 8 Lessons for Prospective Parties
from Australia's Experience’ (2016) 5 British Journal of American Legal Studies 397, 408.
5 For example, WCT only prohibits the circumvention of rights controls without regulating the circumvention of access
controls (WCT, Article 11). Australia only has anti-device provision but not anti-access provision (Copyright Act 1968 of
Australia, Article 116AN & 116AO). In Japan, only the circumvention with commercial purpose is condemned (Copyright
Law of Japan, s 1, Article 2(XX)). EU provides a broader exemption for the anti-circumvention rule (EU Copyright Directive
2001/29/EC, Article 5.2(b)). Most jurisdictions require a connection between the circumvention of TPMs and the violation of
traditional copyright, while US copyright law treats the circumvention itself is illegal per se. Yijun Tian, ‘Problems of Anti-
Circumvention Rules in the DMCA & More Heterogeneous Solutions’ (2005) 15 Fordham Intellectual Property, Media &
Entertainment Law Journal 749, 750; Richard Li-Dar Wang, ‘DMCA Anti-Circumvention Provisions in a Different Light:
Perspectives from Transnational Observation of Five Jurisdictions’ (2006) 34 AIPLA Quarterly Journal 217, 218.
6 H. Rept. 105-551 (II), at 21 (1998).
7 Thomas Heide, ‘Copyright in the EU and U.S.: What Access-Right’ (2001) 48 Journal of the Copyright Society of the USA
363, 364. Niva Elkin-Koren, ‘Copyrights in Cyberspace-Rights Without Laws’ (1997) 73 Chicago-Kent Law Review 1155,
1161.
8 Section 4.3.

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