Page 167 - 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

identification technology and establish comprehensive database of copyrighted works
through crowdfunding by each UGC platforms, can only work when there is only one UGC
in one particular filed.
To realise the advantages of CMOs in collective management, this thesis suggests
that only one CMO should manage the copyright in one specific category. This should
be accompanied by strict regulations that prevent CMOs from abusing their monopoly
positions, in addition to the regulations provided by general competition law. The experience
of many continental European countries has proven the effectiveness of establishing a
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supervisory authority or arbitration body to oversee the activities of CMOs. Oversight
is especially needed for the methods of collecting revenue, the calculation of tariffs and
the disclosure of financial reports. In this way, the fair, efficient and transparent collection
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and distribution of levies could be assured, and rent seeking could be reduced. This
experience should be useful to countries such as China in which CMOs are closely affiliated
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with the government. Rather than promoting the individual copyrights of their members,
these CMOs control, supervise and restrict their members to help the government regulate
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the industry. This in turn encourages the government to protect CMOs instead of
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preventing abuses of their monopolistic position. A special supervisory entity consisting
of experienced professionals with expertise in managing copyright in various fields could
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improve the efficiency and credibility of CMOs.
Apart from the arrangement for a supervisory mechanism and technological support,
legal obligations should be attached to CMOs to ensure they fulfil their duty of care in
collecting and distributing levies. A device or service provider or a copyright owner who is
dissatisfied with a CMO’s collection or distribution of a levy, (either the criteria of collection/
distribution or the amount of the levy), should have the right to file a lawsuit against the
CMO and have it heard by the copyright royalty judges. Due to the scope of this thesis, I will
not provide an extensive argument on the management of CMOs, a theme to which a great
deal of research has been devoted. 245

239 Dietz (n 236) 904; Silke von Lewinski, ‘EU Challenges and Solutions in the Field of Collective Management of Copyright
and Related Rights’ (2014) 1 Social Perspectives - Journal for Legal Theory and Practice 104, 107.
240 Dietz (n 236) 916.
241 Participant G, a judge from an Intellectual Property Court in China also discussed the problems of CMOs in China brought
by administrative monopoly. (See Appendix 8); Fuxiao Jiang and Daniel Gervais, ‘Collective Management Organizations in
China’ (2012) 15 The Journal of World Intellectual Property 221, 231.
242 Fengyan Zhang, ‘The State of China’s Collective Rights Management in the Context of the United States and Japan’ (2016) 1
Global Media and China 401, 404.
243 Jiang and Gervais (n 242) 231.
244 Zhang (n 243) 409.
245 Daniel Gervais (ed), Collective Management of Copyright and Related Rights (Kluwer Law, 2006); Daniel Gervais, ‘Keynote:
The Landscape of Collective Management Schemes’ (2011) 34 Columbia Journal of Law & the Arts 591; Reto M. Hilty and
Sylvie Nérisson, ‘Collective Copyright Management and Digitization: the European Experience’ in Ruth Towse and Christian
Handke (eds.), Handbook of the Digital Creative Economy (Edward Elgar, 2013); Lewinski (n 240) ; Dietz (n 236); Katz (n
236); Jiang and Gervais (n 242); Zhang (243).

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