Page 109 - 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

approach, under which copyright owners sell access to the content of their works without
distributing physical copies. For instance, we buy tickets to watch films in theatres, listen
to music at concerts and enjoy collections in museums. We also pay subscription fees to
watch some TV shows. In other cases, the access to content is not directly paid for by the
28
user but purchased by transfer payment. For example, you can access the content of a
book by reading it in a bookstore or library for free without buying or borrowing a physical
copy of the book. You may also enjoy some audio broadcasting or TV shows for free. This
is not because the access to the work is inherently free, but because other consumers, the
government (in the case of libraries) or advertisers have assumed the cost for you.
The two exploitation modes denote that a user can gain access to a work only after the
copyright owner receives revenue from the exploitation of the work, either through the
copies-based approach or the content-based approach. Hence, there should be no need for
an independent access control right. However, due to the combination of digital technology
and the Internet, the ability to make copies of works and then make the content available to
the public has shifted from copyright owners to widely diffused users. For instance, in the
past, record labels could gain revenue by selling discs or from public performance royalties
for broadcasting. However, in the Internet age, various kinds of digital software can convert
music on discs to digital audio files at little or no cost. Once it is uploaded online, a digital
audio file is available for anyone connected to the Internet. Some advanced technology
such as streaming allows users to enjoy the music without downloading it, meaning that
users can gain access to the work without violating the right of reproduction or the right of
public performance, and without paying anything except the marginal costs of the Internet.
Therefore, a new question has arisen in the Internet age regarding the regulation of large-
scale, unauthorised and unremunerated access.

4.2.3 The promise of the access control right in the Internet age

Lawrence Lessig identified four mechanisms that regulate people’s actions: the law,
29
social norms, the market and architecture (technology). These four forces are alternative
and supplement each other. Since traditional copyright law fails to regulate unauthorised
access, other regulatory mechanisms need to intervene. Norms in the Internet age are
characterised by free culture, participatory culture, hacker culture and free sharing, and
30
therefore head in the opposite direction of constraining access. The market cannot play
its role here because authorised copies or content can barely compete with high quality
unauthorised copies or content with a zero marginal price. That is why TPMs have come into

28 Lastowka (n 23) 295.
29 Lawrence Lessig, Free Culture: How Big Media Uses Technology and The Law to Lock Down Culture and Control Creativity
(Penguin 2004) 121.
30 Ibid; Henry Jenkins, Textual Poachers: Television Fans and Participatory Culture (Studies in Culture and Communication)
(Routledge 1992) 2; Henry Jenkins, Convergence Culture: Where Old and New Media Collide (NYU press 2006) 1; Tim
Rayner, Hacker Culture and the New Rules of Innovation (Routledge 2018) 3.

• 95 •