Page 157 - 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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encroachment on the general freedom of users to access to knowledge and create.
This thesis endorses the remuneration approach based on the universally acknowledged
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understanding that copyright is a necessary evil. The legislators of the earliest copyright
laws have already declared the purpose and scope of copyright law:

It is good that authors should be remunerated; and the least exceptionable
way of remunerating them is by a monopoly. Yet monopoly is an evil. For
the sake of the good we must submit to the evil; but the evil ought not to
last a day longer than is necessary for the purpose of securing the good. 178

Under the ‘half empty’ pessimism theory, copyright owners cannot control the work
but can be rewarded because others have benefitted from the use. Non-commercial users do
not need to seek a licence from copyright owners. However, device and service providers
who gain a benefit from users’ increasing use of a device or service in which they consume
the works should remunerate copyright owners. Such remuneration serves as an incentive
mechanism that sends the correct signal to copyright owners. 179

5.4.4 Social and cultural justification of the non-commercial UGC creation
levy scheme

Protecting privacy is another advantage of the levy scheme. Unlike the compulsory
licensing mechanisms that require payment from direct users, levy schemes collect fees
from third parties, thereby alleviating the concern that copyright owners can obtain detailed
information on a specific use. In the 1964 landmark case of Personalausweise, based on
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privacy rights, Germany crafted the first levy scheme in the world. The plaintiff, a German
collection society called GEMA, required audio recording device manufacturers to disclose
information on their purchasers so that GEMA could determine whether these purchasers had
obtained a licence for home taping. The German Supreme Court rejected GEMA’s request,
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arguing that although the audio recording manufacturers had contributorily prejudiced
the interests of copyright owners, requiring the disclosure of individual users’ proprietary
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information would encroach on their right to the inviolability of their home and their
176 Goldstein (n 63) 11.
177 James Boyle, ‘The Second Enclosure Movement and the Construction of the Public Domain’ (2003) 66 Law and
Contemporary Problems 33, 54.
178 Thomas B. Macaulay, A Speech Delivered in the House of Commons (Feb. 5, 1841), in VIII. The Life and Works of Lord
Macaulay 201 (London, Longmans, Green, and Co. 1897).
179 Kretschmer (n 74) 62.
180 Personalausweise, GEMA-Hinweis, German Federal Supreme Court (Bundesgerichtshof), 22January 1960, Case I ZR 41/58,
GRUR 1960.
181 Ibid 340.
182 Kretschmer (n 74) 60; Basic Law of the Federal Republic of Germany (Grundgesetz), 23 May 1949, Article 13(1).

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