Page 150 - 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

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online content and the scarcity of attention, which is the core proposition of the attention
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economy, only a few UGCs are likely to go public and interfere with the copyright owners’
normal exploitation of the work. This was confirmed during my interview with YouTube’s
legal assistant, who noted that the vast majority of UGCs kept silent without further
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distribution.
Since a large part of UGC creation is qualified for the levy scheme, importing UGC levy
schemes, with remuneration to copyright owners, can substantially alleviate the chilling
effect of copyright infringement on a large number of UGC creators such as remixers and
samplers. To practically implement the levy scheme, it is also important to draw a clear
boundary for leviable UGCs, namely, UGCs that would not conflict with copyright owners’
normal exploitation of copyrighted works. According to the interpretation of the study group
for the 1967 Stockholm Revision to the Berne Convention, normal exploitation refers to
the form of exploitation that has or is likely to ‘acquire considerable economic or practical
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importance’. This is consistent with the explanation of the WTO panel. Because the
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normal exploitation requirement is closely related to economic profits and because the
commercial/non-commercial distinction is frequently used in copyright law, I define leviable
UGC as non-commercial UGC.
It is true that the line between ‘commercial/non-commercial use’ has been far from clear,
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although such distinction is frequently invoked in copyright law. Some commentators
have emphasised that it depends on whether the use would ultimately generate profit, either
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directly or indirectly. Some observers have considered the motivation of the user. Some
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courts have focused on the way a UGC is used and the intensity of the use. Others have

126 Chris Anderson, Free: The Future of A Radical Price (Random House 2009) 10.
127 Thomas H. Davenport and John C. Beck, The Attention Economy: Understanding the New Currency of Business (Harvard
Business School Press, 2001) 1.
128 Appendix 9.
129 Records of the Intellectual Property. Conference of Stockholm. June 11 to July 14, 1967 Volume I <ftp://ftp.wipo.int/pub/
library/ebooks/wipopublications/wipo_pub_311e-v1.pdf> (accessed 20 June 2019) at 111.
130 United States-Section 110(5) of the US Copyright Act, (15 June 2000) WTO Doc. WT/DS160/R (WTO Dispute Settlement
Panel Report) <http://www.wto.org/english/tratop_e/dispu_e/1234da.pdf> [United States—Section 110(5) Panel Report] at
para 6.181.
131 Lydia Loren, ‘The Evolving Role of for Profit Use in Copyright Law: Lessons from the 1909 Act’ (2012) 26 Santa Clara High
Technology Law Journal 255, 258.
132 Creative Commons ‘So What is “Commercial Use”?’ <https://www.thehelpful.com/creativecommons/what-is-commercial-
use.html> accessed 10 July 2019.
133 In Authors Guild v. Google, ‘[a]lthough Google has no revenues flowing directly from its operation of the Google Books
functions, Plaintiffs stress that Google is profit-motivated and seeks to use its dominance of book search to fortify its overall
dominance of the Internet search market, and that thereby Google indirectly reaps profits from the Google Books functions.’
Authors Guild v. Google, Inc., 804 F.3d 202, 218 (2d Cir. 2015).
134 ‘[R]epeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a
commercial use’. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001).

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