Page 108 - 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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or (ii) to obtain or retrieve (information from computer data or a file). In the context of
copyright, ‘access’ refers to obtaining information about a work. The access control right
is widely recognised as ‘the ability to experience or apprehend a work – in other words, to
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view, read or listen to it’. Although the idea of an access control right was not included in
the pre-Internet copyright law, the pre-Internet copyright law already protected copyright
owners’ control over access by securing their control over the distribution of copies and the
public performance of the content. The copies-based right and content-based right represent
two branches of the pre-Internet copyright law. The copies-based limb originated from
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the right of reproduction, which spawned the right of distribution and the right to prepare
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derivative works. The content-based approach began with the right of public performance
which later engendered the right of public display and the right to communicate to the public
in the digital age. Under both the copies-based and content-based approaches, users pay for
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access to works and copyright owners control the access to their works.
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The copies-based exploitation mode is based on the right to possess copies of a work.
For example, we buy books, paintings, compact discs and newspapers from bookstores,
video stores or newsstands. We may also borrow books from libraries or rent videos
from video stores to experience a work. The price we pay for the temporary or perpetual
possession of the copy enables us to access the work. Although it may appear that a user
can access the work any time in any way beyond the copyright owner’s control once he or
she obtains an authorised copy, the pre-Internet copyright law has never curtailed copyright
owners’ ability to control access to their works. The first sale doctrine only prevents
copyright owners from interfering with the users’ re-distribution of the copy after the copy
has been legally distributed to the user. It does not prohibit copyright owners from restricting
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the users’ access to the work. For instance, copyright owners can use a special kind of ink
to print a book so that the words disappear a certain amount of time after it has first been
opened. It is the business strategy rather than the copyright law that drives copyright owners
to generously provide full access to their work to those who purchase copies. However, the
owners still reserve the right to control access.
A more obvious way for copyright owners to control access is the content-based

21 Definition of Access, English Oxford Living Dictionaries <https://en.oxforddictionaries.com/definition/access> accessed 19
December 2018.
22 June M. Besek, ‘Anti-Circumvention Laws and Copyright: A Report from the Kernochan Center for Law, Media and the
Arts’ (2004) 27 Colum JL & Arts 385, 474; also see Jane C Ginsburg, ‘From Having Copies to Experiencing Works: The
Development of an Access Right in US Copyright Law’ (2002) 50 Journal of the Copyright Society of the USA 113, 120;
Zohar Efroni, Access-Right: The Future of Digital Copyright Law (Oxford University Press, USA 2011) 145.
23 Ginsburg, ‘From Having Copies to Experiencing Works’ (n 22) 119; F. Gregory Lastowka, ‘Free Access and the Future of
Copyright’ (2001) 27 Rutgers Computer & Technology Law Journal 293, 294.
24 Ginsburg, ‘From Having Copies to Experiencing Works’ (n 22) 119.
25 Ibid.
26 Lastowka (n 23) 294.
27 More discussion in Section 4.3.1.

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