Page 126 - 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

The sole purpose test involves fact-intensive analyses. For example, requiring the key to
listen to popular songs or watch TV shows is far less likely to establish the sole purpose than
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requiring the key for ‘out of commerce’ works. In addition, if the pre-existing work has
already been made available in a non-electronic version, requesting the key to the access-
controlled digital version would hardly be covered by the levy scheme because the user
could create UGCs without passing the access controls.
2) Providing decryption keys to access-controlled works upon request
Currently, works with access authorisation are primarily produced by well-established
copyright companies. These include works such as the songs owned by Universal Music and
the blockbusters produced by Hollywood, which are often termed professional-generated-
content (PGC). UGCs have remained freely and fully accessible. However, UGCs are not
inherently isolated from access controls. Although UGCs have been defined by the OECD
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as content ‘publicly available over the Internet’, both ‘publicly accessible’ and ‘accessible
to a select group of people’ (e.g. fellow university students) can be regarded as ‘publicly
available’. According to the definition of ‘public’ under the existing copyright law, a UGC
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meets the publicly available requirement as long as it is available beyond the scope of ‘a
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family and its social acquaintances’.
Copyright protection does not differ based on the identity of the creators. If professional
copyright owners have the right to control access, UGC creators should also have the
right to decide the conditions of access. The public accessibility to UGCs has arisen more
from business strategies than from legislative restrictions. Compared with PGCs, which
are promoted and disseminated by professional producers and distributors, UGCs have
no dependable distribution channels and have to rely heavily on peer-to-peer distribution
within the network. A higher level of accessibility facilitates the peer distribution of UGCs.
However, when a UGC achieves success in the mainstream market and can maintain a steady
stream of customers, the UGC creator is likely to attach access controls to strengthen his/
her exploitation capability, or remove the UGC from the UGC platform and turn it into a
PGC. Alternatively, some professional producers have chosen to post their PGCs to UGC
platforms to reach a broader audience. Although the Terms of Use/Service (ToU/ToS) on
UGC platforms usually require content uploaders to allow platform users to access the
content, ToUs/ToSs do not require content uploaders to provide full access to the content.
What is more, copyright owners of popular works have the bargaining power to reach new
agreements with UGC platforms, superseding the ToUs/ToSs. This has allowed the copyright

133 ‘Out-of-commerce works are works that are still protected by copyright but are no longer commercially available because
the authors and publishers have decided neither to publish new editions nor to sell copies through the customary channels
of commerce’. See Eblida, ‘Press release of the European Commission on the Signature of the MoU on Out of Commerce
Works’ <http://www.eblida.org/activities/position-papers/out-of-commerce-works-frequently-asked-questions.html> accessed
20 July 2019.
134 OECD, Participative Web and UCC: Web 2.0, Wikis and Social Networking (2007) 9.
135 Ibid (OECD explains ‘publicly available’ as ‘the work is published in some context, for example on a publicly accessible
website or on a page on a social networking site only accessible to a select group of people (e.g. fellow university students)’.).
136 17 U.S.C. §106.

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