Page 149 - 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

to the requirement of Berne Convention. 122
The Berne Convention established two requirements for a permitted use: (i) it should not
intervene in the normal exploitation of the work, and (ii) it should not unreasonably prejudice
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the legitimate interests of the copyright owner. The ‘normal exploitation’ requirement
is more concerned with the scope of permitted use, which is discussed in this section. The
‘unreasonable prejudice’ requirement is more associated with the remuneration of copyright
owners, which is discussed in Section 5.4.3. In this section, I would first explain why
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most UGCs can be covered by the proposed levy scheme and why the levy scheme should
be proposed to facilitate UGC creation. Discussion of the specific standards to determine
whether a UGC can be covered by the levy scheme is followed.
The difference between non-commercial UGC creation covered by the proposed levy
scheme and private copying under the current levy scheme has two aspects: (i) UGC creation
not only reproduces but re-creates the copyrighted work, and (ii) a UGC is publicly available
for everyone connected to the Internet. Incorporating re-creative use into levy schemes
benefits rather than prejudices copyright owners because re-creative use is more likely to
constitute fair use than mere reproductions. What has been more controversial is the public
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availability of UGCs because public use usually falls under copyright owners’ control,
which is the reason why the existing levy scheme merely covers private reproduction.
Nevertheless, this thesis argues that in the context of UGC, making the copyrighted
works contained in UGCs publicly available does not necessarily lead to interference with
the copyright owners’ normal exploitation of the copyrighted works. In the pre-UGC age,
because of the considerable expense involved with mass producing physical copies, only the
content that attracted a broad market had the opportunity to be published and distributed.
In the UGC age, due to the zero marginal cost of producing and uploading content, every
UGC becomes public use in the technological sense because every UGC has the potential
for worldwide distribution. However, this is not public use in the legal sense given that most
UGCs do not appeal to the mainstream market and thus they have no substantial effect on the
market for the copyrighted works. Considering the tension between the overabundance of

122 Berne Convention, art 9(2).
123 Article 9(2) of the Berne Convention establishes a three-step test. In addition to the requirements on ‘normal exploitation’
and ‘unreasonable prejudice’ discussed in this Section, the Berne Convention also requires that the permitted sue should be ‘in
certain special cases.’ (Berne Convention, art 9(2) ‘It shall be a matter for legislation in the countries of the Union to permit
the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal
exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.’) The test of ‘in certain
special cases’ requires that the permitted use should have specific purpose. See Daniel Gervais, ‘Making Copyright Whole: A
Principled Approach to Copyright Exceptions and Limitations’ (2008) 5 Univeristy of Ottawa Law & Technology Jounal 1,
25-27. Since the levy schemes proposed in this thesis merely cover the access and use of copyrighted works for the purpose
of creating non-commercial UGC, such access and use under the proposed levy schemes can pass the test of ‘in certain
special cases’.
124 Gervais, ‘Making Copyright Whole’ (n 123) 29.
125 Gervais, ‘The Tangled Web of UGC’ (n 10) 855.

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