Page 141 - 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

5.3.2 Voluntary abandonment

Due to the difficulty of enforcing copyright or encouraging voluntary licences, some
academics have proposed another option. Voluntary abandonment allows copyright owners
to explicitly forfeit the right to enforce some of their copyrights against specific use, such as
the creative commons (CC) licence and the GPL (GNU general public license). However,
this voluntary abandonment scheme has been too complex to apply. For example, according
to the different permutations and combinations of the four conditions (attribution (BY),
share-alike (SA), non-commercial (NC) and no derivative work (ND)), the CC system exists
in six forms (BY, BY-SA, BY-NC, BY-ND, BY-NC-SA and BY-NC-ND), which is confusing
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even for lawyers. When a UGC uses multiple pre-existing copyrighted works, and each
copyright owner has separate requirements for copyright abandonment, the voluntary
abandonment scheme creates more problems than benefits, making it worse than the current
copyright system. A more fundamental issue with this scheme is that it entitles the copyright
owner to decide whether and to what extent their rights can be abandoned. As Niva Elkin-
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Koren trenchantly put it, this strategy is ‘entirely dependent upon a proprietary regime’. It
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reinforces rather than weakens ‘the sovereignty of the copyright owner’.
The cost of the voluntary abandonment mechanism explains why this abandonment
scheme has mostly been applied to non-commercial contexts such as Wikipedia, open source
software and academic discourse. The increasing commercialisation of UGCs has brought
some uncertainty over whether the scheme should be applied to UGCs. Further, the lack of
economic incentives with this abandonment mechanism could encourage copyright owners
to adopt the most restrictive scheme. For instance, on Flickr, a website that hosts and shares
user-generated photos and videos, the most frequently chosen CC license has been the most
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restrictive one, BY-NC-ND. BY-NC-ND allows users to download, publicly display and
distribute the copyrighted photos and videos, but it still subjects the making of derivative
works to the proprietary copyright regime. Hence, UGC creation is excluded.

5.3.3 Permitted-but-paid rules

This thesis buttresses the ‘permitted-but-paid’ rule that has followed the middle course
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between barring the use and permitting the use without any compensation. The permitted-
but-paid rule, as its name implies, allows certain uses of a copyrighted work but requires

66 Creative Commons, ‘About the License’ <https://creativecommons.org/licenses/?lang=en> accessed 14 June 2018.
67 Niva Elkin-Koren, ‘Exploring Creative Commons: A Skeptical View of A Worthy Pursuit’ in P. Bernt Hugenholtz and Lucie
Guibault (eds), The Future of Public Domain: Identifying the Commons in Information Law (Kluwer Law International
2006).
68 Niva Elkin-Koren, ‘Tailoring Copyright to Social Production’ (2011) 12 Theoretical Inquiries in Law 309, 338.
69 Frederic Lardinois, ‘Creative Commons on Flickr: Users Prefer Restrictive Licenses’ (Readwrite, 6 March 2009) <https://
readwrite.com/2009/03/26/creative_commons_on_flickr_users_choose_most_restr/> accessed 9 June 2019.
70 Ginsburg, ‘Fair Use for Free, or Permitted-but-Paid’ (n 29) 1.

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