Page 129 - 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

uploading. If the copyright owner accepts the invitation for a purpose such as enlarging the
market or establishing a good reputation, then content that was originally outside the UGC
platform would become content within the platform and the procedures set forth above
would apply. If the copyright owner rejects or does not respond to the invitation, according
to my proposal, under the UGC access exception in Section 4.3.1, the user could still be
exempted from circumventing the access control of the copyrighted work if s/he could prove
that his/her access is solely to create UGC(s) for a non-commercial purpose. Nevertheless,
unlike the proposed levy scheme, which provides the copyright owners of access-controlled
works with remuneration in the form of levies, the proposed UGC access exception would
not remunerate copyright owners. Therefore, if a copyright owner believes that users of the
requesting platform would access the works to create non-commercial UGCs, she/he would
probably agree to register the decryption key with the platform. If the copyright owner
believes most users would access and use the access-controlled work for purposes other
than creating non-commercial UGCs, the copyright owner might reject the UGC platform’s
invitation and leave it to the court to determine the users’ purpose, because in this case the
cost of losing access control in general would outweigh the gain from the levies.
3) Joint collection and allocation of non-commercial UGC access levy and non-
commercial UGC creation levy
The non-commercial UGC access levy scheme proposed in this chapter and the non-
commercial UGC creation levy scheme discussed in the next chapter have different
application procedures. Nonetheless, the levies from both schemes should be collected
and allocated jointly. As discussed in Chapters 2 and 3, the basis of levy schemes is that
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certain devices and services facilitate and profit from the use of copyright works. A UGC
platform’s revenue depends on the quantity and quality of UGCs that are related to the use of
pre-existing works, regardless of whether the pre-existing works have been incorporated into
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access controls. That is why the allocation of levies should be based on the frequency and
popularity of the work being used.
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Imagine that the collection and allocation of levies in the UGC access levy scheme
are separate from the collection and allocation of levies in the UGC creation levy scheme.
Assume that each UGC platform needs to contribute 1.5% of its annual revenue as a UGC
access levy and another 1.5% as a UGC creation levy (with the possibility to apply for an
exemption according to Section 5.5.1). Copyright owners of access-controlled works would
receive levy allocations from both levy schemes, competing with other access-controlled
works for the UGC access levy and competing with other copyrighted works, (either access-
controlled or fully accessible), for the UGC creation levy. Copyright owners of works

139 See notes 229-230 in Chapter 2 and accompanying text; see also notes 16-19 in Chapter 3 and accompanying text.
140 A UGC platform can apply for an exemption if it can demonstrate that its revenue substantially comes from user-authored-
content rather than user-derived-content. More discussion in Section 5.5.2.
141 More discussion in Section 5.5.2.

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