Page 111 - 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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manufacturing or distribution of devices that are used for circumvention. In contrast, the
DMCA has cracked down on both circumvention acts and device-trafficking activities. The
WCT also limits qualified TPMs to those that ‘are used by authors in connection with the
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exercise of their rights’, whereas the DMCA protects TPMs that control both access and
copyright. Nevertheless, as Section 4.2.1 illustrated, anti-device provisions have already
been embraced by the pre-Internet laws. The strengthened protection of TPMs is merely a
re-calibration of the balance between copyright owners and users because the decentralised
capability to reproduce and distribute copyrighted works has already ‘shifted the copyright
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“balance”…away from copyright owners and toward end-users’. The debate over the anti-
access provision (17 U.S.C. §1201(a)(1)) and the anti-device provision regarding devices
circumventing access controls (17 U.S.C. §1201(a)(2)) are discussed separately.

4.3.1 Controversies over anti-access provisions

The criticisms of this provision have focused on violations of the first sale doctrine, the
impairment of free speech, the unfairness and disproportionality of criminal punishment
against end users and the undermining of users’ interests in accessing copyrighted works for
non-infringing purposes.
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1) First sale doctrine
The first sale doctrine allows a user who has obtained a copy of a copyrighted work to
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dispose of it in any way that the copyright owner has no legal right to intervene in, whereas
the anti-circumvention clause appears to empower the copyright owner with the right to
control the user’s access to the work indefinitely. This, could result in conflict. However, as
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I demonstrated in Section 4.2.2, the first sale doctrine is only applied when the ownership of
a copy of a work has been lawfully transferred to the user. Many UGC creators do not own
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a copy of the work on which their UGC is based. Most UGC creation is improvisational and
does not involve much time or effort. A work that a UGC creator happens to find for his or
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her current UGC creation may not be used in the next creation. Accordingly, UGC creators
care more about having one-time access to a given work than owning a copy of the work.
Even if a UGC creator obtains a lawful copy of a copyrighted, access-controlled work,

38 WCT, art 11.
39 Ibid.
40 Ginsburg, ‘From Having Copies to Experiencing Works’ (n 22) 119.
41 U.S. Copyright Office, DMCA Section 104 Report, 14-19 (August 2001); Ruth Anthony Reese, ‘The First Sale Doctrine in
the Era of Digital Networks’ (2003) 44 Boston College Law Review 577, 581-582.
42 17 U.S. Code § 109 (a).
43 Ginsburg, ‘From Having Copies to Experiencing Works’ (n 22) 121; Denicola (n 11) 212.
44 Davidson & Associates, Inc. v. Internet Gateway, 334 F. Supp. 2d 1164, 1178 (E.D. Mo. 2004). Section 109 provides that "the
owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled,
without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
45 Jin Kim, ‘User-Generated Content (UGC) Revolution?: Critique of the Promise of YouTube’ (PhD thesis, Univeristy of Iowa 2010) 130.

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