Page 117 - 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

of making criticisms and comments, the qualified context in which the motion picture
excerpts were allowed was extended from ‘non-commercial videos and documentary films’
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to ‘nonfiction multimedia eBooks offering film analysis’. However, using motion picture
excerpts in fictional films was not allowed, even for the purpose of criticism and comment,
because the Librarian said that the evidence presented was insufficient to demonstrate the
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non-infringement of such use.
The next round of rulemaking, in 2015, attracted unprecedented attention and public
engagement. Compared with the 392 comments on the first round of rulemaking in 2000
and the approximately 750 comments submitted in 2012, the number of public opinions,
coming from a wide variety of stakeholders, skyrocketed to nearly 4,000 in 2015. Under
the lobbying power of organisations representing copyright industries, such as the Joint
Creators, DVD Copy Control Association and Advanced Access Content System Licensing
Administrator (AACS LA), the Librarian readopted the film remix exemption with a minimal
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extension. Arguing that ‘blue-ray is quickly supplanting DVD as the predominant source of
motion picture material’, users’ representatives, such as the Electronic Frontier Foundation
(‘EFF’), Organization for Transformative Works (‘OTW’) and New Media Rights (‘NMR’),
persuaded the Librarian to exempt the circumvention of Advanced Access Content System
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(AACS) attached to Blu-ray discs. However, the user group failed to establish further-
extended exemptions in the final rules.
The Librarian declined to extend the scope of the class of works qualifying for the
exemption from ‘motion pictures’ to ‘audiovisual works’ on the grounds that non-motion
picture audiovisual works, such as video games, had presented an insufficient need to
circumvent TPMs for a purpose related to criticism or commentary. As for the scope of
beneficiaries from the exemption, EFF/OTW/NMR advocated, although in vain, that
‘fictional filmmakers’ should be added to the previous list of users who could benefit from
the exemption: non-commercial vidders, documentary filmmakers and nonfiction eBook
authors. Despite the argument that fictional films ‘provide important social commentary, help
to educate American moviegoers as to important events’ and make a substantial contribution
to society through documentary films, the Librarian declined to extend the exemption to
fictional films, finding that their purpose ‘is typically for entertainment, rather than for
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criticism or comment’. In terms of the scope and purpose of the exempted use, EFF and
OTW supported a use that made ‘more than short portions of motion picture excerpts’,

76 Ibid.
77 Library of Congress, ‘Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control’ (2012)
77 Rules and Regulations 65260, 65266. <https://www.copyright.gov/fedreg/2012/77fr65260.pdf> accessed 29 January 2019.
78 Recommendation of the Register of Copyrights Section, ‘1201 Rulemaking: Sixth Triennial Proceeding Recommendation
of the Register of Copyrights’ (October 2015) 57 <https://cdn.loc.gov/copyright/1201/2015/registers-recommendation.pdf>
accessed 19 January 2019 (‘2015 Recommendation’ hereafter).
79 2015 Recommendation, 49-50.
80 Ibid 79.

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