Page 114 - 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

access to knowledge. Access to knowledge is more about capability than the right to access
work. The more knowledge produced, the more ability to access the work. However, access
to knowledge is not a users’ right. As Ronan Deazley concluded, legislators of the first-
generation copyright were concerned more with the total amount of knowledge supplied
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to the reading public than with individuals’ right to obtain the knowledge. Depriving
copyright owners of control over access to their works could undermine their incentives and
lead to a decline in the production of knowledge, which would be contrary to the purpose of
copyright law.
As Section 4.2.2 showed, the right to access has never been allocated to users, even
in the pre-Internet age. For instance, paintings collected by museums, even those entering
the public domain after copyright expiration, are only accessible to visitors who pay fees.
According to Hohfeld’s rights theory, if access to copyrighted works is a users’ right, then
copyright owners would have the duty to make the work accessible to every user upon
his/her request. This would overturn the foundation of copyright law and it would also
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be inconsistent with the practice in the market of cultural products. The reason why the
anti-circumvention clause has raised such furious scepticism in terms of its restriction on
the freedom to access copyrighted works is that the Internet has created the remarkable
impression that information is free. The experience of reading e-books, listening to music or
watching videos online is more like obtaining information that is already publicly available
than watching shows and concerts in theatres, viewing collections in museums or buying
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books or CDs from bookstores or video stores. Attaching TPMs to online material is like
charging for something that was previously free, or erecting fences to enclose the public
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domain. However, we cannot subvert the basic principles of copyright law simply based
on the user’s experience of obtaining knowledge. Further, with the exponential proliferation
of information, most of which is of a low quality, the practice of paying for information
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in exchange for safer, well-organised content with higher quality has become popular.
Subscription to online music stores is an example of this.
In earlier copyright history, copyright law took an intermediary-oriented approach to
address the balance between securing the copyright owners’ revenue from new distribution
channels and making knowledge accessible to users through the new distribution technology.
As Chapter 2 discussed, piano rolls, radio broadcasting and audio/video recording techniques

60 Ronan Deazley, On the Origins of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century
Britain (1695-1775) (Oxford: Hart Publishing 2004) 226.
61 Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law
Journal 16, 24.
62 Lastowka (n 23) 298-299.
63 James Boyle, ‘The Second Enclosure Movement and the Construction of the Public Domain’ (2003) 66 Law & Contemporary
Problems 33. James Boyle, The Public Domain: Enclosing the Commons of The Mind (Yale University Press 2009).
64 Anderson (n 35) 123.

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