Page 125 - 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

controlled source works when the users’ sole purpose is to use the works to create non-
commercial UGCs. The UGC creation levy scheme proposed in the next chapter (Chapter
5) directly addresses the users’ use of copyrighted works to create non-commercial UGCs.
Therefore, the definition of non-commercial UGC creation is more directly associated with
the latter levy scheme. Chapter 5 provides a detailed discussion of the definition and scope
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of non-commercial UGC creation. It suffices here to point out that the restriction on
non-commercial UGC under the proposed levy scheme is designed to avoid conflict with
copyright owners’ normal exploitation of copyrighted works. Noting that it is difficult to
identify a ‘purely non-commercial’ UGC that does not gain any economic benifit in the UGC
age characterized by the advancement of the electronic payment and micro payment, the
proposed non-commercial UGC levy schemes focuses not on whether the UGC gains some
commercial income, but on whether the UGC intervenes with the copyright owner’s normal
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exploitation of the work, as required by the Berne convention.
To ensure that a leviable UGC does not conflict with the normal exploitation of
copyrgihtded works, this thesis establishes three requirements for a UGC to be covered by
the proposed non-commercial UGC levy schemes: (i) the revenues captured by the UGC
creator should not exceed a certain threshold, (ii) the traffic the UGC attracted should not
exceed a certain upper limit, and (iii) if the UGC exceeded the revenue or traffic threshold,
less than a certain percentage of its content should be identical to the content of the pre-
existing work. The criteria for revenue, traffic and overlapping rate can be decided by a third-
party authority. The first condition involves estimating the significance of the revenue the
UGC creator has gained. The second condition (on traffic) is introduced because sometimes
it is difficult to calculate the revenue a UGC creator has earned, considering the popularity
of micro payments facilitated by electronic payment technology and the unlimited number
of consumers on the boundless network. The traffic condition can ensure that the UGC has
not been widely distributed and has not captured significant revenue. The third condition,
regarding the overlapping rate, attempts to reflect the relationship between the profits the
UGC creator has earned and the use of the copyrighted work, because the more intensely the
UGC uses the copyrighted work, the more direct the relationship between the UGC creator’s
revenue and his/her use of the copyrighted work. More discussion of the criteria for non-
commercial UGCs covered by the proposed levy scheme is provided in Section 5.4.2.
It is more difficult to determine the purpose of access than the purpose of use because
a work can be used for various purposes after the user gains access to it, whereas every use
is associated with an observable, specific purpose. For example, if a user gains access to a
copyrighted song, he can use it by remixing it, uploading it to a P2P website, playing it in
a restaurant and many other means. Just because a subsequent use after obtaining access is
fair does not necessarily mean the access was fair. Users are generally expected to request a
decryption key to enjoy the latest film for fun rather than to create non-commercial UGCs.

131 Section 5.4.2.
132 Berne Convention, art 9(2); more discussion is provided in Section 5.4.2.

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