Page 140 - 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

The difficulties with being sheltered by the fair use/dealing doctrine and entering into
copyright licensing agreements suggest that copyright is directed towards professional use,
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namely, the intermediate distributors’ use, rather than the end-users’ use. A new scheme
should be carved out, tailored to the decentralised content produced and distributed in the
UGC age, where every end user has the potential to trigger copyright law.

5.3 Alternative Approach to UGC Creation

5.3.1 Pay-per-view encryption system

One response to the failure of current copyright to deal with the massive scale of
non-professional users is to adopt a pay-per-view encryption system. The problems the
copyright law confronts have grown out of the digital revolution that has democratised
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copyrighted use. As Paul Goldstein remarked, ‘the answer to the machine is the machine’.
Goldstein advanced a ‘celestial jukebox’ system that allows users to download and enjoy
any copyrighted material by making payment based on the number of copyrighted works
downloaded and the degree of involvement with the work (such as the times of viewing,
the number of facilities where the work can play, the number of accounts eligible to access
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the work and the different degree of capabilities from viewing, reading and reproducing).
The content filtering technologies adopted in recent years, such as Content ID are also
applications of this kind of pay-per-view system.
Although the pay-per-view encryption system has been described as a wonderful world
of content management, this world privatises everything related to creativity under the
copyright owners’ control. Despite the statutory limitations and exceptions in copyright law,
a quantitatively based technology management system cannot address qualitatively intense
issues such as fair use and the idea/expression dichotomy. In addition, users are exposed to
the risk of a technological bug that does not occur in the analogue world. These problems
will become exponentially more serious with an increasing number of uses being regulated
by the system. To fight back against the abomination of technological control, users have
deployed continuingly updated decryption tools that are widely available online, owing
to the wave of the hacker culture. The technological arms race has brought nothing but
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welfare reduction to society.

62 Gervais, ‘The Tangled Web of UGC’ (n 10) 856. According to this thesis, non-commercial UGC creators under the proposed
levy scheme are in the category of end users, just as as private copiers under the existing private copying levy schemes do,
because both non-commercial UGC creators and private copiers do not conflict with copyright owners’ normal exploitation
of the copyrighted works. More discussion in note 21 in Introduction.
63 Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stanford University Press 2003) 163.
64 Ibid 187-189.
65 E Gabriella Coleman and Alex Golub, ‘Hacker Practice: Moral Genres and the Cultural Articulation of Liberalism’ (2008) 8
Anthropological Theory 255, 256.

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