Page 20 - 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 1 Introduction
An Intermediary-oriented Approach

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central control that can manage and deploy resources, which is the key to commercialisation.
The spider model fits UGC platforms very well, emphasising their indispensable role in the
UGC industry.
Many proposals have been introduced to impose more liability on UGC platforms,
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either ex-ante or ex-post liability. For example, Jessica Litman, Jane Ginsburg, Niva
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Elkin-Koren and Steven Hetcher all suggested imposing a duty on UGC platforms to
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take reasonable precaution against apparent and repeated infringements. According to them,
the safe harbour doctrine has shielded or even embraced copyright infringement due to
the low threshold for establishing the lack of actual or constructive knowledge of specific
infringements. The EU’s DSM Directive also introduced am ‘upload filter’ provision,
requiring UGC platforms to implement effective and appropriate mechanisms to ensure the
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unavailability of content infringement. However, it has been highly contested.
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In addition to ex-post mechanisms such as filtering, the DSM Directive emphasised the
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UGC platforms’ ex-ante obligation to seek a licence. The licencing requirement is not new.
The Green Paper issued by the US in 2013 refers to ‘intermediary licencing’, in which UGC
platforms are required to seek a copyright licence to make the underlying work available on
the platform. In this way, UGC creators are authorised to generate UGCs based on works on
the licenced platform. Nevertheless, considering the large number of pre-existing works
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available on UGC platforms, voluntary licencing seems to be an excessive burden on them.
In 2018, the US also passed the Music Modernization Act to address online intermediaries’
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licensing obligations. This act established a collective society to grant compulsory blanket
mechanical licences to all music streaming services. It covers the downloading and streaming

33 Ibid 29-30.
34 Jessica Litman, ‘Real Copyright Reform’ (2010) 96 Iowa Law Review 8, 20.
35 Jane C. Ginsburg, ‘User-Generated Content Sites and Section 512 of the US Copyright Act’ in Irini A. Stamatoudi (ed),
Copyright Enforcement and the Internet (Kluwer Law International 2010) 185.
36 Elkin-Koren (n 26) 82.
37 Steven Hetcher, ‘User-Generated Content and the Future of Copyright: Part Two-Agreements Between Users and Mega-
Sites’ (2007) 24 Santa Clara Computer & High Technology Law Journal 829, 830.
38 DSM Directive, article 17.4. Although the final draft deleted the word “filtering,” some scholar still argue that the language
it used still signify a filtering obligation as it require UGC platform to exercise ‘high industry standards of professional
diligence, best efforts to ensure the unavailability’ of infringing works. Senftleben Martin, ‘Bermuda Triangle – Licensing,
Filtering and Privileging User-Generated Content Under the New Directive on Copyright in the Digital Single Market’ (April
4, 2019) 8. available at SSRN: <https://ssrn.com/abstract=3367219> or <http://dx.doi.org/10.2139/ssrn.3367219>.
39 Divij Joshi, ‘Update: European Union Agrees on Copyright Directive Text, “Upload Filters” and “Link Tax” Closer to
Becoming Internet Norms’ (SpicyIP, 17 February 2019) <https://spicyip.com/2019/02/update-european-union-agrees-on-
copyright-directive-text-upload-filters-and-link-tax-closer-to-becoming-internet-norms.html> accessed 28 April 2019.
40 DSM Directive, article 17.1.
41 The Department of Commerce Internet Policy Task Force, Green Paper on Copyright Policy, Creativity, and Innovation in
the Digital Economy (July 2013) 32.
42 The Orrin G. Hatch–Bob Goodlatte Music Modernization Act, or Music Modernization Act or MMA (H.R. 1551, Pub.L.
115–264).

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