Page 116 - 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 use after access has been granted, this paragraph constructs a bridge to connect traditional
copyright exemptions with the access control right. However, the first two three-year
rulemaking proceedings in 2000 and 2003 revealed the heavy evidentiary burden imposed
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on exemption seekers. The 2000 congressional report resulted in two exemptions and the
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2003 report produced four exemptions, none of which was associated with UGC. In 2006,
the Librarian of Congress granted an exemption for remixing films, but it only applied to
film professors who needed to circumvent TPMs to compile portions of films for educational
use. In 2010, the Librarian of Congress introduced the first UGC-related exemption by
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extending the remix exemption from film professors to non-commercial video makers
(‘vidders’) and documentary filmmakers who had circumvented the Content Scrambling
System (CSS) that protected films on DVDs. The exemption allows users to incorporate
‘short portions of motion pictures into new works for the purpose of criticism or comment’
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(hereinafter the ‘film remix exemption’).
The film remix exemption was renewed and slightly expanded in 2012. With filmmakers’
increasing reliance on access to digitally transmitted material, the permitted circumvention of
TPMs extended from ‘CSS attached to motion pictures contained on DVDs’ to ‘other kinds
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of TPMs employed by motion pictures delivered through online service’. Screen-capture
technology was also allowed as an alternative to circumvention. Subject to the purpose

71 Rebecca Tushnet, ‘I Put You There: User-Generated Content and Anticircumvention’ (2009) 12 Vanderbilt Journal of
Entertainment & Technology Law 889, 908.
72 The two classes of works announced in the 2000 proceeding subject to the exemption from access control were:
(1) Compilations consisting of lists of websites blocked by filtering software applications.
(2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit
access because of malfunction, damage, or obsoleteness. US Copyright Office, ‘Rulemaking on Exemptions from Prohibition
on Circumvention of Technological Measures that Control Access to Copyrighted Works’ <https://www.copyright.gov/1201/
anticirc.html> accessed 20 January 2019.
The four classes of work got exempted in 2003 were:
(1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications
that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations
blocked by software applications that operate exclusively to protect against damage to a computer or computer network or
lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.
(2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
(3) Computer programs and video games distributed in formats that have become obsolete and which require the original me-
dia or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render
perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial
marketplace.
(4) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions
made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function
and that prevent the enabling of screen readers to render the text into a specialized format.
US Copyright Office, ‘Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Con-
trol Access to Copyrighted Works’ <https://www.copyright.gov/1201/2003/index.html> accessed 19 January 2019.
73 US Copyright Office, ‘Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that
Control Access to Copyrighted Works’ <https://www.copyright.gov/1201/2006/index.html> accessed 19 January 2019.
74 US Copyright Office, ‘Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that
Control Access to Copyrighted Works’ <https://www.copyright.gov/1201/2010/index.html > accessed 19 January 2019.
75 US Copyright Office, ‘Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that
Control Access to Copyrighted Works’ <https://www.copyright.gov/1201/2012/index.html > accessed 19 January 2019.

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