Page 247 - 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 8 Concluding Remarks
An Intermediary-oriented Approach

9
claims, maximum compensation threshold and levies. In this way, end users are exempt
from copyright liability and are free to obtain and use a variety of copyrighted works through
the latest, most efficient technology at a low price. Jonathan Barnett explained this as
follows: ‘The intermediary’s private interest in influencing the state to expand copyright to
cover a novel production or distribution technology and the public’s interest in financing and
bearing the costs and risks of producing and distributing content through that technology at
10
the lowest cost possible would go hand in hand’. The intermediary-oriented approach has
further implications on how copyright law should deal with large amount of end users' use
when new technology comes out to decentralise the capacity to use copyrighted works.
However, early in the Internet age, a safe harbour rule was introduced into copyright
law to exempt Internet service providers (ISPs) from copyright infringement liability and
to enforce copyright directly against users. The primary reason was the passive role ISPs
played at the early stage of the Internet age as mere conduits or automatic tools to distribute
content. The safe harbour rule also gained support from copyright owners because they can
effectively enforce copyright against end users through extralegal means. The shift from an
intermediary-oriented approach to the safe harbor rule which exempts the liability of online
distributors is the fundamental reason for the dilemma we meet in the UGC age. Copyright
owners can hardly get a share from the new revenue stream brought about by UGCs.
Though UGC platforms have substantially profited from UGCs, they can be exempted from
copyright infringement liability via the safe harbor rule. Accordingly, copyright owners
have turned to enforcing copyright directly against UGC creators. Nevertheless, most UGC
creators use copyrighted works for non-commercial purpose, and complain that they cannot
gain remuneration from UGC platforms which have earned plenty of money by UGCs.
UGC platforms, however, are frustrated by the prevalence of web scraping which might
unreasonably prejudice UGC platforms’ legitimate interests in exploitating UGCs.
Based on UGC platforms’ active role in facilitating and profiting from the creation and
exploitation of UGCs, this thesis suggests applying the intermediary-oriented approach
to UGC platforms to solve the current dilemma. Briefly speaking, in terms of facilitating
UGC creation based on pre-existing works, I highlight the role of UGC platforms as
facilitator-distributors of pre-existing works contained in UGCs. Drawing upon historical
experience, I suggest imposing levy schemes on UGC platforms to allow users to access
and use copyrighted works to create non-commercial UGCs. In terms of facilitating the fair
exploitation of UGCs as copyrighted works, I highlight the role of UGC platforms as quasi-
producers of UGCs and propose some legeal standard about the conscionability of ToU/
ToS through which UGC platforms exploit UGCs, with a scheme to govern platform users’
use of UGCs, to delineate the interface between UGC creators’ copyright, UGC platforms’
legitimate interests as quasi-producers of UGCs, and platform users’ freedom to access and

9 Section 2.3.4.
10 Jonathan M Barnett, ‘Copyright without Creators’ (2013) 9 Review of Law & Economics 389, 406-407

• 233 •