Page 123 - 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

Section 4.4.3 demonstrates the practicability and feasibility of the proposed levy scheme.

4.4.1 UGC platforms as distributors under the intermediary-oriented
approach

Some scholars have proposed that a third-party agency should be introduced to solve the
access problem. For example, Dan Burk and Julie Cohen envisioned a key escrow system
under which a trusted third party would provide applicants who meet the programmed norm-
based fair use criteria with the cryptographic keys deposited by the copyright holder to
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obtain access to the TPM-protected work. Jacqueline Lipton proposed an ‘administrative
complaint mechanism’ that would be faster and more cost-effective than the current triennial
administrative mechanism under 17 U.S.C. § 1201(a)(1)(C). Unlike the current mechanism,
which provides exemptions for specific classes of work, the system Lipton proposed would
address specific fair use complaints on a case-by-case basis, and require copyright holders
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to make access to the requested works available to users who could pass the fair use test.
James Gibson suggested an administrative agency that would keep an unfettered version of
the copyrighted works deposited by their copyright owners and provide unfettered version of
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the works to those who demonstrated their fair use bona fides. Yijun Tian also introduced
an agency into his proposed ‘fair circumvention’ system to examine the applications
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submitted by users who wish to gain access to copyrighted works. The agency would
then help qualified users access the works by providing a temporary password or asking the
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copyright owners for assistance through judicial procedures.
The above proposals correctly recognise the active role of a third-party intermediary in
alleviating the tension between access and incentives. This thesis argues that UGC platforms
can serve as such third-party intermediaries. This is based on the intermediary-oriented
approach underlying copyright history and is tailored to the current business model.
UGC platforms technically distribute pre-existing copyrighted works which are
embodied in UGCs in the same way that player pianos distribute musical compositions in
the form of piano rolls, films distribute novels and plays adapted to film, and digital audio
recorders distribute sound recordings to a broader audience who can access the recordings
in a more efficient and cost-effective way. By investing in enlarging storage and throughput
capacity, upgrading bandwidth, and speeding up the transmission of online material, UGC
platforms allow copyrighted works to distribute to all member nodes in the network at
zero or marginal cost. UGC platforms would significantly profit from the distribution of
copyrighted works just as their counterparts did in earlier copyright history. For example,

117 Dan L Burk and Julie E Cohen, ‘Fair Use Infrastructure for Copyright Management Systems’ (2001) 15 Harvard Journal of
Law and Technology 41, 62-65.
118 Jacqueline D. Lipton, ‘Solving the Digital Piracy Puzzle: Disaggregating Fair Use From the DMCA's Anti-Device Provisions’
(2005) 19 Harvard Journal of Law & Technology 111, 116-117.
119 James Gibson, ‘Once and Future Copyright’ (2005) 81 Notre Dame Law Review 167, 239.
120 Tian (n 5) 785-786.
121 Ibid 786.

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