Page 127 - 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

owners to substantially control the conditions of access. 137
Due to the blurred line between UGCs and PGCs, I choose to distinguish between
access-controlled content within the UGC platform that hosts the user requesting access, and
access-controlled content outside the UGC platform.
(1) Access-controlled works within the UGC platform
To date, only a few works on UGC platforms have incorporated access controls.
However, access controls will be prevalent when UGCs achieve success in the mainstream
market, or when UGC platforms have more flexible means of monetising that attract PGCs.
To tackle access controls within UGC platforms, UGC platforms should require the copyright
owners of access-controlled works to register the decryption keys through which individuals
can obtain access to access-controlled works on the platform. Any copyright owner of an
access-controlled work that has failed to register the decryption key on the platform should
not be allowed to have his/her work uploaded. In turn, the UGC platform should pay a levy
to the copyright owners of the access-controlled works. If a user on a platform wants to
access a work solely to create UGC(s) for non-commercial use, he or she must ask the UGC
platform for the key to access the work.
As discussed in Section 4.4.2, it is difficult to determine the purpose of an access
request because one access may be associated with multiple uses and each use may have a
specific, observable purpose. Australia has coped with the purpose-determination problem
by implementing a user-declaration rule. Users must declare that certain devices and services
are used solely for a permitted purpose by a qualified person so that the devices and services
138
can be exempted from liability for circumventing TPMs. Following this approach, I
suggest that UGC platforms should require a requesting user to make a statement explaining
the reasons why and the ways in which s/he would use the work. The requesting user should
also promise that the UGC would only be posted on the platform the request is submitted
to. As it is difficult to examine a purpose or intent of an act before it is carried out, the UGC
platform should make a formal, non-substantial review of the statement, provide the key
to the user, and defer the substantial investigation of the use to a later stage. However, to
prevent users from abusing the levy scheme, at the time the key is provided to the requesting
user, the UGC platform should freeze the user’s account at the normal price for gaining
access. If the default condition for gaining access is not to pay a certain amount of money,
the UGC platform could freeze the amount equivalent to the condition.
When the UGC platform receives notice that the UGC has been created and uploaded to

137 Some content in Youtube needed to be rented (one-time access) or purchased (permanent accessed) (https://www.youtube.
com/watch?v=2qJBtiAcvtw).
138 Australia exempts the liability of manufacturers or distributors of the device or service used for circumvention upon users’
declaration that the device or service is used solely for a permitted purpose by a qualified person, with the identification of
the specific permitted purpose, and that the non-TPM-protected form of the work is not available to the user. (Australian
Copyright Act of 1968 (amended 2002), §116A(3)(b)). However, the new law amended in 2017 deleted this user-
declaration scheme from the part ‘Actions in relation to technological protection measures and electronic rights management
information’, (Division 2A—Actions in relation to technological protection measures and electronic rights management
information, Part V—Remedies and offences, Australian Copyright Act of 1968 (amended 2017)) though users are still
allowed to request for reproducing and communicating works by libraries and archives for, declaring that i) s/he requires
reproduction merely for the purpose of research or study, and ii) s/he has not previously been supplied with a reproduction of
the same article or the same part of the article.( Australian Copyright Act of 1968 (amended 2002),§49).
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