Page 113 - 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

primary difference between these two restrictions was whether the restriction was due to
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agreement or disagreement with the message the speech conveyed. The anti-circumvention
provision was not intended to intervene with the expression of the programmer of the
circumvention software, but to regulate the functional, non-speech instructions that enabled
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the computer to perform the tasks of decryption. Therefore, the anti-circumvention
provision was acknowledged as a restriction on the functional element of speech in which
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the form of the circumvention software existed. The courts concluded that a restriction on
the functional elements of speech could be buttressed upon evidence of (i) ‘an important
or substantial governmental interest’ and (ii) a burden on speech which is ‘no more than
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necessary’. The courts have subsequently affirmed that the anti-circumvention clause
‘[does] not burden substantially more speech than is necessary’ to serve the government’s
sufficiently important interests in ‘promoting electronic commerce, protecting copyrights,
and preventing electronic piracy’. Consequently, the anti-circumvention clause does not
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violate freedom of speech.
3) Access to knowledge
Another attack on the anti-circumvention clause has been its inconsistency with
copyright’s purpose of promoting access to knowledge. Examining the purpose of copyright
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is the logical starting point for analysis. Both the US Constitution’s intellectual property
clause and the Statute of Anne have made it clear that the purpose of copyright law is to
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encourage learning and promote the progress of knowledge. However, encouraging the
spread of knowledge and learning is not necessarily equal to facilitating individual users’

53 Universal City Studios, Inc. v. Corley, 273 F.3d 429, 440 (2d Cir. 2001).
54 Ibid 450; Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 328-329 (S.D.N.Y. 2000).
55 Universal City Studios, Inc. v. Corley, 273 F.3d 429, 446 (2d Cir. 2001).
56 Turner Broadcasting v. Federal Communications Commission, 512 U.S. at 662, 114 S.Ct. 2445 (quoting O'Brien, 391 U.S.
at 377, 88 S.Ct. 1673 (internal quotation marks omitted)); see also, e.g., United States v. Weslin, 156 F.3d 292, 297 (2d
Cir.1998); Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 328 (S.D.N.Y.), judgment entered, 111 F. Supp. 2d
346 (S.D.N.Y. 2000), aff'd sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 442 (2d Cir. 2001). In contrast, the
regulation of expressive elements was subject to strict scrutiny under which the restrictions would only be upheld if ‘they
serve compelling state interests by the least restrictive means available’. See Universal City Studios, Inc. v. Reimerdes, 111 F.
Supp. 2d 294, 327 (S.D.N.Y.), judgment entered, 111 F. Supp. 2d 346 (S.D.N.Y. 2000), aff'd sub nom. Universal City Studios,
Inc. v. Corley, 273 F.3d 429, 442 (2d Cir. 2001); United States v. Elcom Ltd., 203 F. Supp.2d 1111, 1128 (N.D. Cal.2002).
57 Universal City Studios, Inc. v. Corley, 273 F.3d 429, 450 (2d Cir. 2001); United States v. Elcom Ltd., 203 F. Supp. 2d 1111,
1132 (N.D. Cal. 2002).
58 Lydia Pallas Loren, ‘The Purpose of Copyright’ (OpenSpace) <http://open-spaces.com/articles/the-purpose-of-copyright/>
accessed 1 January 2019.
59 Statute of Anne, as its title ‘An Act for the Encouragement of Learning’ shows, is designed to encourage learning through
abandoning the monopoly of the Stationers’ Company and vesting copyright in authors to promote competition in the reading
market and to incentivize the production of books with affordable price. The constitutional IP clause in US states its purpose ‘to
promote the Progress of Science and useful Arts’ by ‘securing for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries’. (SU. S. Const. art. I, § 8, cl. 8.) According to Dr. Samuel Johnson's Dictionary
published in 1818, the same period with the enactment of the US Constitution, ‘science’ broadly described knowledge while
‘arts’ denoted invention, and thus corresponded with ‘authors, writings’ and ‘inventors, discoveries’ respectively. Johnson,
English Language Dictionary (1st Amer. ed. 1818). Cited from Giles S. Rich, ‘Principles of Patentability ’ (2004) 14 Federal
Circuit Bar Journal 135, 137, 144.

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