Page 122 - 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

4.4 An Intermediary-oriented Solution: UGC Platforms as Third-
parties with the Key to Access

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Among the above criticisms, some are unpersuasive, some have been settled by
courts and some have pointed out the prohibitive effects of the anti-circumvention clause,
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(including the insufficiency of statutory limitations, the unfair and disproportionate
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criminal punishment and the pre-determined punishment for device/service manufacturers
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and sellers such as UGC platform operators ), for their ability to be used to circumvent
access controls. Apart from imposing extra burdens on users, the access right provision
has failed to secure copyright owners’ exploitation of the works in the face of the digital
revolution. As computer security experts have acknowledged, no technological barrier can
ultimately prevail over determined hackers. Technological protection measures are not
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the panacea for the problems generated by new technology. The overwhelming ideology of
free culture in the Internet age, the uncertainty of exempted access and the great expense
of litigation have further weakened the reliability of the access control right in ensuring
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copyright owners’ incentive mechanisms.
Drawing insight from historical experience of how copyright law has relieved the tension
between access and incentives through the intermediary-oriented approach, I propose a non-
commercial UGC access levy scheme. Under this scheme, UGC platforms would obtain
decryption keys to access-controlled works by paying a levy to copyright owners, and then
provide the decryption keys to users who want to access the work for the sole purpose of
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creating UGCs for non-commercial use. Section 4.4.1 explains the reason why I chose
UGC platforms as the leviable intermediary. Section 4.4.2 explores the application of the
scheme, including the scope of non-commercial UGC, the registration and allocation of
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decryption keys, and cooperation with the UGC creation levy discussed in Chapter 5.

108 Criticism about the conflict between the access control right and the first sale doctrine (Section 4.3.1.1); criticism about the
conflict between the access control right and the purpose of copyright law of promoting access to knowledge (Section 4.3.1.3)
109 Criticism about the impairment of the freedom of speech by the access control right (Section 4.3.1.2)
110 Section 4.3.1.4.
111 Section 4.3.1.5.
112 Section 4.3.2.
113 Neil W. Netanel, ‘Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing’ (2003) Harvard Journal of
Law & Technology 1, 9.
114 Theresa M. Troupson, ‘Yes, It's Illegal to Cheat A Paywall: Access Rights and The DMCA's Anticircumvention Provision’
(2015) 90 New York University Law Review 325, 354.
115 Non-commercial UGC covered by the proposed UGC access levy scheme and the proposed UGC creation levy scheme
should meet the following requirements: (i) the revenues the UGC creator captured should not exceed a certain threshold,
(ii) the traffic the UGC attracted should not exceeded a certain upper limit, (iii) if the UGC exceeds the revenue threshold or
the traffic threshold, the UGC should have less than a certain percentage of content identical to the content of a pre-existing
work. The criteria for the revenue, traffic and overlapping rate can be decided by a authorized third-party. More detailed
discussion of the scope of the non-commercial UGC is provided in Section 5.4.2.
116 Section 4.3.1.4.

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