Page 118 - 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

and endeavoured to replace the enumerated purposes of ‘criticism and comment’ with the
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broader concept of ‘non-infringing’ or ‘fair’ uses. However, the Librarian insisted on the
previous restriction of ‘short portions…for the purpose of criticism or comment’ because
it ‘provides useful guidance as to what is generally likely to be a fair use in these contexts
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without imposing a wholly inflexible rule as to length’. Those opposing the expansion
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of the limitation also cited the Corley decision, claiming that the fairness of use after
access did not entitle a user to gain access to the work. Although this argument was hardly
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persuasive given that one purpose of 17 U.S.C. 1201(a)(1)(C) is to connect fair use and
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‘fair access’, the 2018 proceeding reaffirmed the 2015 version of the film remix exemption
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without substantial expansion.
Until now, the UGC-related exemption has remained quite restricted: a narrowly
crafted scope of the class of copyrighted works (pure films, excluding non-motion-
picture audiovisual works), two enumerated types of purposes (criticism and comment),
the restrictive use of the works (‘small portion’), a limited category of qualified users
(documentary filmmakers, non-commercial vidders, nonfictional multimedia eBook authors)
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and the short-lived period (triennial evaluation with no guarantee of renewal). This
narrowly tailored exemption is insufficient to address UGC creators’ increasing demand
to circumvent access controls. Statistics have shown that 2.6% of US Internet users have
created remixed videos, and ‘between 2,000 and 6,000 original fair use videos that include
clips from TPM-protected film or television sources are likely being uploaded to YouTube
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each day’. Therefore, in addition to the non-commercial UGC access levy scheme that
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enables UGC creators to access access-controlled works on the UGC platform, I suggest
that a UGC access exception should be introduced to allow UGC creators to circumvent the
access controls of copyrighted works outside UGC platforms. Further discussion of the UGC
access exception is provided in Section 4.4.2.

81 Ibid 73.
82 Ibid 71.
83 Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001).
84 2015 Recommendation, 72.
85 Randal C. Picker, ‘Fair Use v. Fair Access’ (2008) 31 Columbia Journal of Law & the Arts 603, 603.
86 Library of Congress, ‘Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control’ (n
75) 19.
87 The Copyright Office has rejected petitioners’ seeking for permanent exception given that the statute already provides for
a few classes of uses and users (As a blind user said in hearings, “In three years, I will still be blind.”), concluding that the
process is functional, and few changes should be made. (A Report of the Register of Copyrights, ‘Section 1201 of Title 17’
(June 2017) 61 <https://www.copyright.gov/policy/1201/section-1201-full-report.pdf> accessed 19 January 2019.
88 U.S. Copyright Office, Library of Congress, Comments of Electronic Frontier Foundation and Organization for
Transformative Work, Docket No. 2014-07, 3 <https://copyright.gov/1201/2015/comments-020615/InitialComments_
LongForm_EFFOTW_Class07.pdf> accessed 19 January 2019.
89 Section 4.4.2.

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