Page 110 - 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

the picture. They cope with the problems prompted by the new technology in a technological
way. To support this technology through coercive enforcement, Internet copyright law has
correspondingly extended its regulations from the trafficking of devices circumventing TPMs
(anti-device provision) to the act of circumventing TPMs (anti-access provision), and from
TMPs that control traditional copyright to TPMs that control access.
Having an access control right not only accords with earlier copyright history in the
sense of continually incentivising copyright owners in new markets, but also yields a net
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welfare gain for users through price discrimination. Digital technology enables copyright
owners to control how a user uses the work: the number of times it is read, listened to or
viewed, the number of computers on which the work can be played, the duration of access,
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etc. Copyright owners can set different prices according to the extent of the user’s access to
the work. Price discrimination generates welfare gains because users who cannot afford the
work under uniform pricing can access the work at a lower price, and users who want greater
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access to the work can do so at a higher price. The technical capacity to sophisticatedly
control access also encourages owners to supply copyrighted works with various choices of
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price. Some information may be provided for free, such as a start-up artist’s digital music
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files. In contrast, more organised or scarce information, such as a blockbuster movie, may
involve some cost to access. 36

4.3 What is Wrong with the Access Control Right?

Despite the custom of paying directly or indirectly for access in the pre-Internet age,
and despite the promise of an access control right in the Internet age, severe criticism and
heated debate have sprung up to question this new right. This part attempts to summarise the
possible opposition to the access control right followed by my response. It points out that the
real problem with the access control right is the underlying idea of exempting intermediaries
and targeting end users.
There is a general criticism that the access control right is over-broad in scope and has
a prohibitive effect on users. The WCT requires member states to provide ‘predictable,
minimalist, consistent, and simple’ protection to tackle the digital revolution, whereas
the DMCA seems to impose an ‘unpredictable, overbroad, inconsistent, and complex’
burden on users. Article 11 of the WCT only prohibits the act of circumvention, not the
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31 Ginsburg, ‘From Having Copies to Experiencing Works’ (n 22) 295.
32 Lessig, Free Culture (n 29) 120-121.
33 Ginsburg, ‘Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the
US Experience’ (n 12) 16.
34 Ginsburg, ‘From Having Copies to Experiencing Works’ (n 22) 115.
35 Chris Anderson, Free: The Future of A Radical Price (Random House 2009) 25.
36 Ibid.
37 Pamela Samuelson, ‘Intelletual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be
Revised’ (1999) 14 Berkeley Technology Law Journal 519, 533.

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