Page 107 - 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

that effectively controls access to a work’ is not allowed, regardless of the purpose of the
14
circumvention.
Although some courts have adopted an ‘infringement-nexus approach’ that requires a
connection between the circumvention of access controls and the violation of traditional
15
copyright, the ‘access right approach’ emphasizing the independent value of the access
control right is more in accord with the plain language of the statute and the intent
of Congress. As the critical Reimerdes decision (declining to apply fair use to the
16
circumvention of access control) held, ‘[i]f Congress had meant the fair use defence to
apply to such actions, it would have said so. Indeed, as the legislative history demonstrates,
the decision not to make fair use a defence to a claim under Section 1201(a) was quite
17
deliberate’. It is only after the user has gained authorised access that the fair use rule can
take effect. The Ninth Circuit Court of Appeals distinguished access controls and rights
controls when it found that ‘1201(a) creates a new anti-circumvention right distinct from
existing copyright, while section (b) strengthens the traditional copyright’. The US House
18
of Representatives further elaborated that the access control right ‘[has] little, if anything, to
do with copyright law…and would be separate from and cumulative to the existing claims
19
available to copyright owners’.
As access control protection is far more robust than rights control protection which
resides within the existing copyright regime, access controls are much more controversial
than rights controls. Therefore, this chapter proposes a non-commercial UGC access
20
levy scheme that especially addresses UGC creators’ access to access-controlled works.
Circumventing rights controls is already uninfringing under the current copyright law as
long as the subsequent use is legal. Accordingly, works with and without rights controls can
be jointly addressed by the non-commercial UGC creation levy scheme proposed in Chapter
5. Under the creation levy scheme, the use of copyrighted works to create non-commercial
UGCs is permitted, thereby the circumvention of rights controls for such use is legal.
4.2.2 Access control protection under the pre-Internet copyright laws

According to the Oxford Dictionary, ‘access’ means (i) to approach or enter (a place),

14 17 U.S. Code § 1201 (a)(1)(A).
15 As the Federal Circuit Court stated in Chamberlain v. Skylink, the access control right cannot intervene previously legal
activities or target against any new activity, but ‘applies only to circumventions reasonably related to protected rights’.
Chamberlain Group v. Skylink Technologies, 381 F.3d 1178, 1195 (Fed. Cir. 2004) Michael Landau, ‘Has the Digital
Millennium Copyright Act Really Created a New Exclusive Right of Access: Attempting to Reach a Balance between Users'
and Content Providers' Rights’ (2001) 49 Journal of the Copyright Society of the USA 277, 311.
16 Landau (n 15) 311.
17 Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 322 (S.D.N.Y. 2000).
18 MDY Industries v. Blizzard Entertainment, 629 F.3d 928, 948 (9th Cir. 2010).
19 H. Rept. 105-551, at 23-24(1998).
20 Denicola (n 11)211.

• 93 •