Page 105 - 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

commercial UGC access levy, drawing on the ways pre-Internet copyright rules enforced
copyright against distributors to relieve the tension between ensuring copyright owners’
9
incentives and preserving end users’ free access to copyrighted works to create UGCs. Non-
commercial UGC creators under the proposed levy scheme are in the category of end users,
just as as private copiers under the existing private copying levy schemes do, because both
non-commercial UGC creators and private copiers do not conflict with copyright owners’
normal exploitation of the copyrighted works. By highlighting the role of UGC platforms
as the distributors of the pre-existing works on which UGCs are based, this UGC access
levy requires UGC platforms to remunerate the copyright owners of pre-existing works and
exempts users from having to obtain access to pre-existing works to create UGCs for non-
commercial use.

4.2 Justifying the Access Control Right

4.2.1 Access control right under the DMCA 10

The DMCA prohibited three acts: (i) circumventing a technological measure that controls
access to a work (17 U.S.C. §1201(a)(1)); (ii) trafficking any technology, product, service,
device or component that circumvents a technological measure that controls access to a
work (17 U.S.C. §1201(a)(2)); and (iii) trafficking any technology, product, service, device
or component that circumvents a technological measure that protects a right of a copyright
owner (17 U.S.C. §1201(b)(1)).
The DMCA (17 U.S.C. §1201(a)(1)) can be termed an anti-access provision, and 17
U.S.C. §1201(a)(2) and 17 U.S.C. §1201(b)(1) can be termed anti-device provisions. Anti-
device provisions are not new. For instance, the Audio Home Recording Act (17 U.S.C. §
1002(c)) already prohibits trafficking in devices that circumvent the serial copy management
system (SCMS), a system that can prevent the making of second-generation digital copies.
The Communications Act (47 U.S.C. 605(e)(4)) also prohibits devices that assist in the
unauthorized decryption of the satellite cable encryption system. The regulation of the
act of circumvention, nevertheless, is unique to digital copyright law, which is another
demonstration of its strategy of targeting end users.
Although the anti-device provisions address both the devices that circumvent access

9 This thesis considers UGC creators whose use of copyrighted work does not conflict with the normal exploitation of the
copyrighted work as end users. More discussion is provided in note 21, Introduction.
10 Though WCT and WPPT incorporated the anti-circumvention clause earlier than DMCA, the idea of the anti-circumvention
clause was first expressed in DMCA in 1996. However, DMCA did not pass when it was first introduced to the Congress
because the Congress considered DMCA too controversial. Therefore, the US managed to introduce the anti-circumvention
clause to WCT and WPPT so that all member states in WIPO, including the US, should enforce the anti-circumvention clause
in their domestic laws. The anti-circumvention clause in DMCA which was finally passed in 1998 is more stringent than the
anti-circumvention clause in WCT and WPPT. Therefore, I discuss the anti-circumvention clause in DMCA rather than that
in WCT or WPPT. See supra note 4.

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