Page 115 - 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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have helped users access copyrighted works more efficiently and cost-effectively.
Copyright owners have acquired remuneration via various kinds of compulsory licences,
collective licences with ‘reasonable fee’ claims, and levies imposed on distributors, namely,
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piano roll manufacturers, broadcasters and audio/video recorder manufacturers. However,
this intermediary-oriented approach has failed to work for online intermediaries, which
is the principal reason why the access control provision has been severely criticised for
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encroaching on users’ access to knowledge. This thesis suggests that the real problem is not
the anti-circumvention clause. After all, TPMs were incorporated into the 1992 AHRA. The
exact problem is that the anti-circumvention clause under the DMCA has cast a shadow on
the intermediary-oriented approach and shifted the muzzle to the end user.
4) Lack of limitations
Another concern over the access control right has been its lack of limitations, not only
in the sense that traditional copyright exceptions such as fair use have been inapplicable, but
also because there have been so few exceptions that specifically address the access control
right. The US Congress designed seven exceptions to legalise specific circumventions
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of access controls by non-profit libraries, archives and educational institutions (17 U.S.C.
§1201(d)), law enforcement, intelligence and other government agencies (17 U.S.C.
§1201(e)), and for the purpose of reverse engineering (17 U.S.C. §1201(f)), good faith
encryption research (17 U.S.C.§1201(g)), preventing access to minors (17 U.S.C. §1201 (h)),
preventing the collection or dissemination of personally identifying information (17 U.S.C.
§1201 (i)) and security testing (17 U.S.C. §1201 (j)). The congressional report also declared
an exemption, which several courts have upheld, that once a user has obtained authorised
access to a copy of a work, his/her subsequent access and any other actions related to the
work will no longer be subject to 17 U.S.C. 1201(a)(1) even if such actions involve the
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circumvention of other types of TPMs.
Although the exemptions enumerated above have not addressed the access problem for
UGC creators, the DMCA has provided leeway for policymakers to create new exemptions
with the evolution of technology. The Act (17 U.S.C. 1201(a)(1)(C)) requires the Librarian
of Congress to conduct a rulemaking proceeding at three-year intervals to determine the
exemptions for users ‘who are, or are likely to be in the succeeding three year period,
adversely affected by the prohibition under [1201(a)(1)(A)] in their ability to make non-
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infringing uses of a particular class of copyrighted works’. By considering the purpose of

65 Section 2.3.4
66 Ibid.
67 Tawfik Myra, ‘History in the Balance: Copyright and Access to Knowledge’ in Michael Geist (ed), Radical Extremism’to
‘Balanced Copyright’: Canadian Copyright and the Digital Agenda (Irwin Law 2010) 75.
68 Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 304 (S.D.N.Y. 2000).
69 S. Rept. 105-190, at 28 (1998); H. Rept. 105-551 (I), at 18 (1998); Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d
th
294, 323 (S.D.N.Y. 2000); Davision & Associates v. Internet Gateway, 422 F.3d 630, 638 (8 Cir 2006).
70 17 U.S. Code § 1201(a)(1)(C).

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