Page 156 - 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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payment to compensate for loss or damage’, and serves ‘to restore an injured party to
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his former position’. Recital 35 of the InfoSoc Directive states: ‘[i]n certain cases of
exceptions or limitations, right holders should receive fair compensation to compensate them
adequately…a valuable criterion would be the possible harm to the right holders resulting
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from the act in question’. At law, the word ‘harm’ is used to describe a lost opportunity of a
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sale or a licence that the right holder would have otherwise had. Therefore, treating private
copying payments as compensation presumes that every use is under the control of copyright
owners and any copyright opportunity that has been unattained deserves compensation.
However, only losses caused by illegal activities need compensation. For instance, the
loss of a sale due to competition from another store has no legal remedy. Likewise, the harm
resulting from an activity exempted by law, such as private copying, is not compensable. To
put it more forthrightly, if a copyright owner is not entitled to an opportunity of licence at
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the outset because of a legislative exemption, there is no harm and no need to compensate.
If a use is subject to a levy scheme, what the copyright owners gain is not compensation,
but remuneration. According to Black’s Law Dictionary, remuneration refers to ‘reward,
recompense and salary’. In short, remuneration means a quid pro quo, i.e. the consideration
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a person receives for the services or products he or she has provided. In addition to the
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172
Single Digital Copyright Directive that refers to levy systems as ‘remuneration schemes’,
the German legal system treats an author’s right to be remunerated as a reward for the
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enjoyment the audience has derived from the author’s work. France has also replaced the
term ‘compensation’ with ‘remuneration’, describing the levy scheme as ‘the right to receive
a remuneration or the reproduction of the work’. 174
Interpretating levies as compensation suggests copyright optimism, viewing ‘copyright’s
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cup of entitlement as always half full, only waiting to be filled still further’. Interpretating
levies as remuneration, in contrast, represents copyright pessimism, in which copyright's
cup is viewed as half empty, and any extension of copyright protection is treated as an

165 Oxford Dictionary of Law, p 98 <https://www.fd.unl.pt/docentes_docs/ma/wks_ma_21613.pdf> accessed 19 May 2019.
166 Black’s Law Dictionary <https://thelawdictionary.org/compensation/> accessed 19 May 2019.
167 Information Society Directive (Directive 2001/29/EC), recital 35.
168 Kretschmer (n 74) 17.
169 Ibid.
170 Black’s Law Dictionary <https://thelawdictionary.org/remuneration/> accessed 19 May 2019.
171 Ibid.
172 DSM Directive, art 57. However, Single Digital Copyright Directive seems to use ‘remuneration’ and ‘compensation’ jointly,
arguing that ‘[w]hen applying the exception or limitation Member States shall take due account of remuneration schemes to
compensate for any unreasonable actions contrary to the legitimate interests of rightholders’.
173 Christie (n 159) 248.
174 Christophe Geiger, ‘Promoting Creativity through Copyright Limitations: Reflections on the Concept of Exclusivity in
Copyright Law’ (2010) 12 Vanderbilt Journal of Entertainment & Technology Law 515, 530.
175 Goldstein (n 63) 11; see supra notes 94 and 95 and accompanying text.

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