Page 134 - 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 5 Formulating a Non-commercial UGC Creation Levy Scheme
An Intermediary-oriented Approach

extensive attention and heated debate. Some have preferred to accommodate UGC creation
10
11
by following the current copyright regimes such as fair use or compulsory licensing. Some
have suggested a new, positive right for UGC creators wanting to use copyrighted works
12
to create UGCs. This thesis also agrees that the current copyright regime is inherently
incompatible with UGC creation, which is explored in Section 5.2. By comparing alternative
regimes governing the use of copyrighted works for UGC creation, I advance a non-
commercial UGC creation levy scheme in Section 5.3. Section 5.4 explores the justification
for the proposed levy scheme and draws the boundary for leviable use, i.e. the use that can
be covered by the proposed levy scheme. Because ‘the devil is in the details’ for any policy
proposal, I draw a fairly specific outline showing the application of the non-commercial
UGC creation levy scheme in Section 5.5. This is followed by a brief conclusion. The levy
schemes proposed in this Chapter and the previous chapter do not cover user-authored-
content because user-authored content does not involve the use of pre-existing works. UGC
platforms that mainly host user-authored content, such as social media platforms, are not
covered by the levy scheme.

5.2 Uncertain Copyright Status of UGC Creation: Tension between
Intermediary-oriented Regime and Decentralised Content Production

5.2.1 Blurred boundary of fair use/dealing

Except for Canada, no jurisdictions have incorporated an exception clause for the general
category of UGCs into their copyright legislation. Under the EU system, legislators have
13
tended to restrict copyright exemptions to certain kinds of UGCs, such as parody, satire,
quotations, criticism, review, caricature and pastiche, usually in the form of fair dealing. In
14
Eva-Maria Painer v Standard Verlags GmbH, the Court of Justice of the European Union

10 E.g., Mary W.S. Wong, ‘Transformative User-Generated Content in Copyright Law: Infringing Derivative Works or Fair
Use?’ (2008) 11 Vanderbilt Journal of Entertainment & Technology Law 1075, 1075; Daniel Gervais, ‘The Tangled Web of
UGC: Making Copyright Sense of User-Generated Content’ (2008) 11 Vanderbilt Journal of Entertainment & Technology
Law 841.
11 E.g., Lawrence Lessig, ‘Free (ing) Culture for Remix’ (2004) 4 Utah Law Review 961, 961; Peter Menell, ‘Adapting
Copyright for the Mashup Generation’ (2015) 164 University of Pennsylvania Law Review 441, 451.
12 Yahong Li, ‘The Age of Remix and Copyright Law Reform’ (2019 forthcoming) 12 Law, Innovation and Technology 26-
27 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3316523> accessed 15 April 2019; Yahong Li and Weijie Huang,
‘Taking users’ rights seriously: proposed UGC solutions for spurring creativity in the Internet age’ (2019) 9 Queen Mary
Journal of Intellectual Property 61, 81.
13 2012 Canadian Copyright Modernization Act (Bill C-11), section 29.21; Bills Committee on the Copyright (Amendment) Bill
2014, User-Generated Content, LC Paper No. CB(4)100/14-15(01), at 1.
14 The Directive on Copyright in the Digital Single Market (DSM Directive), Art 17.7; Berne Convention, Article 10; UK’s
Hargreaves Review; The UK’s responses to the EU consultation published in February 2014 states that ‘[t]he UK believes
more transparency for users regarding blanket licensing arrangements for UGC platforms would be useful, as would a focus
on educating users and creators of UGC about copyright rules more broadly. As the recent EU stakeholder dialogue found,
the case for any other regulatory intervention in this area remains to be made’; Ireland’s ‘Modernising Copyright’.

• 120 •