Page 172 - 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 6 UGC Platforms’ Entitlement to UGCs
An Intermediary-oriented Approach

The Berne Convention does not require fixation but leaves it to the sovereign member
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states. UGCs do not confront fixation problems in jurisdictions without excluding unfixed
works from copyright protection. Here I discuss the fixation conditions a UGC should meet
in jurisdictions with fixation requirements.
1) Fixation
The fixation requirement mainly contains two elements: embodiment and duration.
Under the embodiment condition, works must be ‘fixed in any tangible medium of
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expression…from which they can be perceived, reproduced or otherwise communicated’. A
UGC satisfies the embodiment condition because regardless of whether it has been stored on
a hard disk, it is stored in the RAM of the computer through which users gain access to the
UGC, and RAM copies have been held by the courts to constitute fixed copies.
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UGCs have faced greater challenges with the duration condition, which requires a work’s
embodiment to be ‘sufficiently permanent or stable to permit it to be perceived, reproduced,
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or otherwise communicated for a period of more than transitory duration’. Most UGCs such
as videos on YouTube, pictures on Flickr and blogs on Myblog are stored on the server ‘for
a period that is more than transitory duration’ and therefore meet the duration requirement.
What has been more controversial is ‘fluid UGCs’ (e.g. Tweets) that can be constantly
posted, updated, edited and deleted. Purely evanescent or transient reproductions have been
explicitly excluded from the category of durable fixed works in US Congressional reports
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and case law. However, buffer copies have been acknowledged as having durable fixation.
For example, In Williams Elecs v. Artic, the defendant argued that a video game is unfixed
because it always generates new images that move around on the screen and disappear. The
Third Circuit Court of Appeals disagreed, finding that a video game is a fixed work because
it is permanently embodied in the computer code on the ROM.
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Fixation has been interpreted broadly in recent years and storage in RAM would seem
to satisfy the duration requirement. The Ninth Circuit Court of Appeals, for example, held
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18 Berne Convention, art 2(1). It shall, however, be a matter for legislation in the countries of the Union to prescribe that works
in general or any specified categories of works shall not be protected unless they have been fixed in some material form.
19 17 U.S. Code § 102 (a).
20 Apple Computer, Inc. v. Formula Int’l, 594 F. Supp. 617, 621 (C.D. Cal. 1984) (noting that copying a program into RAM creates
a fixation, albeit a temporary one); Quantum Sys. Integrators, Inc. v. Sprint Nextel Corp., 2009 U.S. App. LEXIS 14766 at
*18-19 (4th Cir. July 7, 2009) (loading of software into RAM from unauthorized copies on hard disk was sufficiently fixed for
purposes of copyright infringement); MAI Systems Corp. v. Peak Computer, Inc, 991 F.2d 511, 516 (9th Cir. 1993) (loading an
operating system into RAM for maintenance purposes by an unlicensed third party maintenance organization created an illegal
‘copy’ of the program fixed in RAM); also see M. Nimmer & D. Nimmer, Nimmer on Copyright § 8.08[A][1], at 8-114 (1999).
21 17 U.S.C. § 101.
22 H.R. Rep. No. 94-1476, at 53 (1976), reprinted in U.S.C.C.A.N. 5659, 5666. Information Infrastructure Task Force,
‘Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property
Rights’ at 27 (1995).
rd
23 Williams Electronics, Inc. v. Artic Intl, Inc. 685 F 2d 870, 874 (3 Cir., 1982).
24 David L. Hayes, ‘Advanced Copyright Issues on the Internet’ 17-19 <https://www.fenwick.com/FenwickDocuments/
Advanced_Copyright_2013.pdf?utm_source=Mondaq&utm_medium=syndication&utm_campaign=inter-article-link&utm_
source=Mondaq&utm_medium=syndication&utm_campaign=inter-article-link> accessed 19 May 2019.

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