Page 130 - 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

without access controls would only receive allocations from the UGC creation levy. Imagine
that P is a copyright owner of an access-controlled work and Q is a copyright owner of a
work without access controls. Even if Q’s work is much more popular than P’s and Q can
earn more than P from the creation levy scheme, P could receive a levy from the access levy
scheme and Q would get nothing. This would encourage copyright owners to increase access
controls, which goes against the ultimate purpose of copyright law: to promote access to
knowledge and encourage learning.
Therefore, I suggest that the levies for both schemes should be jointly collected from
UGC platforms, say 3% of revenue, and then allocated to copyright owners according to the
popularity and frequency of use of the pre-existing works. In the above scenario, P and Q
would join the same levy allocation scheme with the same criteria. If Q’s work is used more
often than P’s, Q would receive a bigger share of the levies. This would in turn encourage
copyright owners to either increase the quality of access-controlled works or directly
abandon access controls to invite more use. As the levies for the UGC access levy scheme
and UGC creation levy scheme are collected jointly, the scope of devices and services
subject to levies, and the methods of calculating, collecting and allocating levies would be
the same for both schemes, as discusssed in Section 5.5.3.

4.4.3 The practicability and necessity of the non-commercial UGC access
levy scheme

The proposed UGC platform levied scheme not only draws insight from the experience
of earlier intermediary-oriented copyright rules, but also corresponds to current business
practices. UGC platforms have already taken the initiative in facilitating users’ access to
works. For example, a UGC platform has guaranteed users’ free access to others’ content
on the platform through the ToU/ToS, which serve as an agreement between the UGC
platform and its users. The characteristics of ToUs/ToSs are investigated in Chapters 6 and
7. However, it suffices here to identify a ToU/ToS as a third-party beneficiary contract under
which the content uploader and the UGC platform agree to increase the accessibility of
the content to other users in the platform. The increased viewership also contributes to the
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attention gained by the content creator and the ad revenue for the UGC platform. In my
empirical study of 30 UGC platforms hosting different categories of copyrighted works, all
of them allowed platform users to at least access the content hosted on the platform. Some
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platforms accorded users greater involvement with the content, such as by allowing them to

142 Section 7.2.1.
143 For example, ‘You may access Content for your information and personal use solely as intended through the provided
functionality of the Service and as permitted under these Terms of Service…. You shall not copy, reproduce, make available
online or electronically transmit, publish, adapt, distribute, transmit, broadcast, display, sell, license, or otherwise exploit
any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content’.
Terms of Service 5.B., YouTube. YouTube has discontinued the paid content since 1 January 2018.

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