Page 23 - 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

have proposed that compulsory licencing be advanced. For example, Lawrence Lessig
favoured a compulsory licence on amateur creations so that artists could ‘receive more
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money over the last ten years than they have’. Peter Menell asserted that a compulsory
licence for user-generated videos was crucial to securing cultural freedom for the mashup
64
63
generation. Nevertheless, because many UGCs are used for non-commercial purposes,
requiring UGC creators to pay a licence fee, regardless of how small, would substantially
hinder its use. That is why compulsory licences under the US law have generally been
designated for professional users, such as player piano manufacturers’ mechanical
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reproduction of musical compositions, and cable or satellite operators’ public performance
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of copyrighted programming. Little research has investigated the justification for applying
compulsory licences to non-commercial amateur use.
Earlier in the history of copyright, the large-scale use of copyrighted works was often
addressed by levy schemes, such as the levy on audio recording devices for non-commercial
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home copying in the US and Canada, and the levy on various kinds of reprographic and
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recording devices for private copying in the EU. The essence of these levy schemes was
to require third parties to pay a pre-determined amount to the copyright owner to exempt
large numbers of users’ non-exploitative use of the work. Although UGC creation meets the
requirements for large-scale non-exploitative use based on ‘cognitive surplus’ theory and the
democratisation of creation, little research has addressed the application of the levy scheme
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to the UGC context. A report by the UK Intellectual Property Office suggested that the levy
scheme could be expanded to include UGC creation, but it did not indicate how the levy
would work. 71
1.2.3 A UGC as a copyrighted work

Much attention has been paid to the creation of UGCs, (i.e., using pre-existing works to
create UGCs), whereas the exploitation of UGCs (i.e., using UGCs as copyrighted works),

62 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (Penguin 2008) 110
63 Peter S Menell, ‘Adapting Copyright for the Mashup Generation’ (2015) 164 U Pa L Rev 441, 443
64 See supra note 21.
65 17 U.S. Code § 115.
66 17 U.S. Code § 111 (c)(1).
67 17 U.S.C. § 1008; Copyright Act, R.S.C. 1985, ch. C-42, § 79 (Canada).
68 Martin Kretschmer, Private Copying and Fair Compensation: An empirical study of copyright levies in Europe (Intellectual
Property Office 2012).
69 See supra note 1 and accompanying text.
70 Yahong Li proposed a levy on media platforms based on the observation that some online platforms remunerate copyright
owners and remixers according to some content identification technology. Li (n 9) 31-32. Nevertheless, such remuneration
approach does not meet the current definition of a levy scheme since levies are aimed at addressing a large scale of use and
thus allow blanket use rather than individual use of copyrighted material.
71 Kretschmer (n 68) 9.

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