Page 155 - 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

Unlike the levy schemes widely adopted in the continental European system, the fair use/
dealing rules under common law copyright systems have been inclined towards polarisation,
like an on/off switch. They have either provided the copyright owner with overwhelming
control over the use, or have entitled the user to use the work without remunerating the
copyright owner. The lack of a remuneration system has encouraged copyright industries to
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lobby to narrow the copyright exceptions. For instance, the fair dealing rule in the UK has
traditionally been applied when a copyrighted work is used for research and private study,
but this has not been extended to private copying. In 2014, the UK copyright law introduced
a private copying exception that merely accommodates private use with three purposes,
‘making back up, shifting format and storage’, which is substantially narrower than other
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EU counterparts. Even though its scope had been rather limited, the private copying
exception was defeated by the high court one year later after its inception on the ground that
the exception was too broad and would lead to more than minimal harm to copyright owners,
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who would not be remunerated under the private copying exception.
The lack of a remuneration scheme in the UK brought about the termination of the
private copying exception. Conversely, the polarising binary choice between exclusive
control and free use under the US system, has threatened to sacrifice copyright owners’
interests. As illustrated by the ‘recontextualisation’ trend discussed in Section 5.2.1, US
courts have harnessed the flexibility of the fair use doctrine to make a broad, or even
distorted, interpretation of fair use. By legalising many uses that would hardly be treated as
candidates for fair use twenty years ago, the courts’ expansive interpretation has provided
generous breathing space for new technology, but has also deprived copyright owners of
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revenue they could have gained.
Although the levy scheme has practically reached a satisfactory resolution for both sides,
a disturbing question has remained regarding the nature of remuneration, which is the key
to the correct scope of permitted-but-paid use. The InfoSoc Directive of 2001 described it
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as ‘fair compensation’, and the Single Digital Market Directive of 2016 used the term
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‘fair remuneration’. These are two different concepts. Compensation refers to ‘monetary

159 Ifeoluwa A. Olubiyi, ‘Imposition of A Copyright Levy in Nigeria: Legal Justifications and Comparative Analysis’ (2014) 4
Journal of Sustainable Development Law Policy 87, 93.
160 EDRi, ‘UK Format Shifting and Parody Copyright Laws Come into Force’ (8 October 2014) <https://edri.org/uk-format-
shifting-and-parody-copyright-laws-come-into-force/> accessed 19 May 2019; Copyright, Designs and Patents Act 1988,
section 28(B)(5).
161 British Academy of Songwriters, Composers and Authors Musicians' Union & Ors, R (on the application of) v Secretary of
State for Business, Innovation and Skills & Anor [2015] EWHC 2041 (Admin) (17 July 2015) <http://www.bailii.org/ew/
cases/EWHC/Admin/2015/2041.html> accessed 19 May 2019.
162 Jane C Ginsburg, ‘Copyright 1992-2012: The Most Significant Development’ (2012) 23 Fordham Intellectual Property Media
& Entertainment Law Journal 465, 490.
163 Information Society Directive (Directive 2001/29/EC), Art 5(2)(b).
164 Information Society Directive (Directive 2001/29/EC), Art 13b.

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