Page 147 - 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

German counterpart introduced a levy system on audio and video home-taping equipment in
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1965. This was followed by a levy on audio and video tapes in 1985. The German model
has been heavily drawn on by other European countries, although the specific rules have
varied by country. The Information Society Directive (InfoSoc Directive) of 2001 authorises
EU member states to provide copyright exceptions for private, non-commercial copying
upon right holders’ receipt of fair compensation, with a broad scope of the reproductions
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‘on any medium’. Currently, 22 of the 27 Member States (with the exception of the UK,
Ireland, Malta, Cyprus and Luxembourg) have adopted private, non-commercial copying
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levy schemes. Nevertheless, no levy schemes have been extended to the online context. 109
In confronting the impact of digital and network technology, some academic proposals
have been advanced that extend the levy scheme from the offline world to the virtual
world. For instance, addressing the significant impact of digital and network technology
on copyright law, Glynn Lunney favoured a levy-based copyright regime over the current
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proprietary, encryption-based approach to copyright. Neil Netanel advocated for a levy
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scheme that allows non-commercial file sharing. William Fisher went a step further,
suggesting that a levy should be imposed on recording devices to cover the communication
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of copyrighted music and films to the public, even for commercial uses. In the same year
when Fisher published his levy proposal, Jessica Litman advanced a similar levy scheme but
mainly focusing on the music industry. 113
However, most previous research has not provided a comprehensive explanation of the
justifications for extending the levy scheme beyond its original scope. This thesis argues that
extending levy schemes to non-commercial UGC creation corresponds to the democratisation
of the capacity to re-create and publicly communicate content engendered by new
technology. The history of levies shows that they were introduced to address the facilitator-
distributors. As Chapter 2 explained, before the ability to reproduce was decentralised to end
users, it was the distributors who controlled the use of copyrighted work and whose use was
governed by compulsory licensing, ‘reasonable fee’ claims and a ‘maximum compensation’
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threshold. After the ability to reproduce was democratised, distributors transformed
105 Dirk Visser, ‘Private Copying’ in Bernt Hugenholtz, Antoon Quaedvlieg and Dirk Visser (eds), A Century of Dutch Copyright
Law: Auteurswet 1912-2012 (deLex B.V. 2012) 414.
106 Ibid; Hugenholtz (n 76) 13; Russell Sanjek, American Popular Music and Its Business: The First Four Hundred Years,
Volume III: From 1900-1984 (Oxford University Press, Oxford 1988) 111.
107 Information Society Directive (Directive 2001/29/EC), Art 5(2)(b).
108 Kretschmer (n 74) 7.
109 Netanel (n 73) 32, 38.
110 Lunney (n 73) 912.
111 Ibid.
112 Fisher III (n 73) 223.
113 Jessica Litman, ‘Sharing and Stealing’ (2004) 27 Hastings Communication & Entertainment Law Journal 1, 35.
114 Section 2.3.4.

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