Page 128 - 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 platform, the UGC platform should substantially evaluate whether the UGC meets the
conditions of the levy scheme. The UGC creator could submit a supplementary declaration
demonstrating that the UGC is based on the requested work, the UGC is posted exclusively
on the platform, the UGC meets the accessibility requirement under the ToU/ToS of the
platform and the non-commerciality requirement set in Section 4.4.2 has been satisfied.
Once the UGC platform has determined that the requested access meets the non-
commercial use requirement under Section 4.4.2 or falls within the other exceptions or
exemptions discussed in Section 4.3.1, the UGC platform should expeditiously unfreeze the
user’s account without deducting any amount. This would not be unfair to other users of
the platform who do not require access to access-controlled works because the requesting
user would not gain significant profit from the UGC and would contribute the UGC to the
platform. If the requested access does not qualify for the proposed access levy scheme or
does not fall within the other exemptions, the platform should deduct the amount that has
been frozen, i.e. the normal price for gaining access, and allocate a pre-determined portion of
the money to the copyright owner.
UGC platforms have a duty to determine whether the requesting user qualifies for the
non-commercial UGC access scheme, and the decision should be made in good faith and in
a reasonably prudent manner. If a UGC platform has knowledge of the unlawful access but
still provides the key, the UGC platform will be liable for violating the anti-device clause.
If a UGC platform has knowledge that the requested access is qualified for the levy scheme
but rejects to unfreeze the user’s account or rejects to provide the key, the user can bring
a suit against the UGC platform for violating the levy scheme and require for the key and
compensation.
(2) Access-controlled content outside the UGC platform
More access problems have occurred in content outside UGC platforms. For example,
a Tik Tok user wants to access the latest Hollywood movie for secondary recreation, but the
movie is posted on another platform with access controls. In this case, the levy scheme this
thesis proposes allows the requesting user to ask the UGC platform on which the future UGC
will be posted to invite the copyright owner of the access-controlled work to post the work
on the platform and register the decryption key to access. The requesting user should submit
evidence showing how s/he would like to access and use the work to create non-commercial
UGC(s). Of course, UGC platforms can decide whether to ask the copyright owner for the
decryption key. For example, if there are multiple users wanting the UGC platform to ask for
the key for the same copyrighted work, the UGC platform might agree to send the invitation
because the revenue it would gain from the use of the work would probably outweigh the
administration costs. Conversely, if there is only one person requesting access, the UGC
platform might decline to extend the invitation.
This gives the copyright owner a chance to reconsider the distribution strategy according
to market conditions that might be completely different than they were at the time of

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