Page 153 - 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

work, the more direct the relationship should be between the profits the UGC gains and the
use of the work, and the more likely it should be for the UGC to be excluded from the levy
scheme. As the courts have pointed out, ‘repeated and exploitative unauthorised copies’ in
a ‘highly organised and systematic way’ would be sufficient to establish a commercial use
whereas sporadic and isolated copying would generally be considered a non-commercial
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use. The legislative exception for libraries also manifests such a distinction: ‘isolated and
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unrelated’ reproduction is allowed whereas ‘systematic’ reproduction is not.
That is why P2P sharing, which is usually the full, verbatim reproduction and
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transmission of a copyrighted work, is often treated as commercial use. In this sense, UGC
creation is more qualified for the non-commercial standard under the proposed levy scheme
because UGCs normally use pre-existing works only sporadically and non-exploitatively.
The exception is user-copied-content and user-derived-content that substantially reproduces
pre-existing works. The third-party authority could establish the standard for substantial
reproduction that drives user-derived-content out of the proposed levy scheme. Using a
quantitative standard to decide the qualitatively based issue of copyright infringement would
engender some problems. However, there is no panacea for distinguishing exploitative use
and non-exploitative use in an accurate and straightforward way. Setting a clear, easily
operating criterion is at least better than the status quo under which UGC is filtered without
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a transparent standard. The specific percentage needed for user-derived-content to be
considered user-copied-content is a matter for copyright policy. The stronger the copyright
protection, the lower the percentage. For example, the Electronic Frontier Foundation (EFF)
proposed a 90% criterion under the fair use principle, whereas YouTube adopted a roughly
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80% standard for its Content ID system. The third-party authority could set the standard
based on empirical studies of the market for different types of works and the importance of
economic incentives for different categories of copyright owners.
Although the recontextualisation standard is receptive to user-copied-content that
transforms the distribution model of pre-existing work without changing the content, the

148 Encyclopaedia Britannica Educational Corp. v. Crooks, 447 F. Supp. 243, 252 (W.D.N.Y. 1978), cited by Television Digest,
Inc. v. United States Telephone Assoc., 841 F. Supp. 5, 9-10 (D.D.C. 1993); see also American Geophysical Union v. Texaco,
60 F.3d 913, 924 (2d Cir. 1995); Jane C Ginsburg, ‘Copyright Use and Excuse on the Internet’ (2000) 24 Columbia-VLA
Journal of Law & the Arts 1, 31.
149 17 U.S. C § 108 (g).
150 Sega Enters. Ltd. v. Maphia, 857 F. Supp. 679, 687 (N.D. Cal. 1994); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004,
1011, 1015 (9th Cir. 2001).
151 Mel Stanfill, Exploiting Fandom: How the Media Industry Seeks to Manipulate Fans (University of Iowa Press 2019) 120.
152 Fair Use Principles for User Generated Video Content, EFF, <https://www.eff.org/pages/fair-use-principles-user-generated-
video-content> accessed 15 May 2019 (‘If nearly the entirety (e.g., 90% or more) of the challenged UGC is comprised of a
single copyrighted work’, the UGC will be regarded as infringing.)
153 YouTube Help, ‘Usage Policies and Match Policies’ <https://support.google.com/youtube/answer/107129?hl=en> accessed
15 July 2019. (‘The amount of the uploaded video that matches your reference file, specified as … a percentage like 80%’.)

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