Page 106 - 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

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controls and the devices that circumvent rights controls, the anti-access provision
merely condemns the act of circumventing access controls without addressing the act of
circumventing rights controls. Jane Ginsburg argued that incorporating the anti-access
provision mainly serves the purpose of regulating the trafficking of devices that evade access
controls because the trafficking of devices has more economic significance than the end
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users’ act of circumvention. Nevertheless, because the anti-access provision has generated
no fewer controversies than the anti-device provision, the anti-access provision cannot be
regarded as a by-product of the anti-device provision. It has significant and independent
value.
Protecting access controls is not only an indispensible component of the anti-
circumvention clause; it is even more important than protecting rights controls. First,
circumventing access controls constitutes an independent infringement under the anti-
circumvention clause, whereas circumventing rights controls is only illegal when the
subsequent use is an infringement. Second, even under the anti-device provisions, the
criteria for establishing devices that circumvent rights controls are more stringent than those
that establish devices that circumvent access controls. The law prohibits the trafficking
of devices that circumvent a TPM that ‘effectively protects a right of a copyright owner
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under this title’. This means that if a device can be used to circumvent a rights control for
making fair use, the device will not be subject to the anti-device provision. In contrast, the
trafficking of any device that is ‘primarily designed or produced for…circumventing a [TPM]

11 Generally, an access control refers to the technology ‘allowing the user to view, hear, store, or print the work only on
compliant devices’, while a rights control refers to the technology ‘restricting the user’s copying, performance, etc., of the
work’. Anthony Reese, ‘Will Merging Access Controls and Rights Controls Undermine the Structure of Anticircumvention
Law’ (2003) 18 Berkeley Technology Law Journal 619, 645. In other words, access controls ‘keep [users] from accessing the
works’ while rights controls ‘limit what [users] can do with the work’ after the access the work (e.g., ‘whether [users] can
copy the work, how many copies can be made, how long [users] can have possession of the work, and the like’). Berkman
Klein Center for Internet & Society, ‘Circumventing Copyright Controls’ (Digital Media Law Project) <http://www.dmlp.org/
legal-guide/circumventing-copyright-controls> accessed 10 July 2019. Therefore, rights controls are also called post-access
controls. See Tian (n 5) 758.
Nevertheless, the line between access controls and rights controls is blurred because copyright owners can adopt technologies
that ‘restrict copying by limiting access to authorized devices, so that the technology simultaneously qualifies both as
an access control and a rights control’. Reese (n 11) 647. For example, Content Scramble System (CSS), an encryption
program that requires a DVD film to be played only on a CSS-compliant player, has been held to constitute both an access
control and a right control. (Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 308 (S.D.N.Y. 2000) (‘CSS …
is an access control and copy prevention system for DVDs developed by the motion picture companies’)) CSS is an access
control because it only allows users to play/access a DVD film on a particular device.CSS is also regarded as a rights control
because it only allows users to play the film on the device, not copy the film. Reese (n 11) 643. The distinction between
access controls and rights controls is a very important topic to which much research has devoted. See Tian (n 5) 758; Heide
(n 7) 376; Reese (n 11) 641; Robert C. Denicola, ‘Access Controls, Rights Protection, and Circumvention: Interpreting the
Digital Millennium Copyright Act to Preserve Noninfringing Use’ (2008) 31 Columbia Journal of Law & the Arts 209, 220.
Nevertheless, I will not discuss this topic further since it is beyond the scope of this thesis.
12 Jane C Ginsburg, ‘Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations
and the US Experience’ (2005) Columbia Public Law & Legal Theory Working Papers Paper 0593, 16. Only when the
circumvention of access controls constitutes direct infringing could the trafficking of the devices that circumvent access
controls be held for taking secondary liability.
13 17 U.S. Code § 1201 (b)(1)(A).

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