Page 248 - 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

use UGCs in the big data era dominated by the norm of open access and the freedom of
competition. Specific proposals are explained as follows.

8.2.2 Non-commercial UGC access levy scheme

Chapter 4 proposed a non-commercial UGC access levy to alleviate the prohibitive effect
of the anti-circumvention clause. Although access controls had already been incorporated
in the pre-Internet age, the Internet copyright law imposed access controls directly on
individual users for the first time, as a manifestation of the targeting-user strategy of the
Internet copyright law. To balance the UGC creators’ interests in free creation and the
copyright owners’ interests in securing revenue in response to the digital revolution that
democratised the ability to reproduce and distribute copyrighted works, I introduced a UGC
platform-levied scheme.
Specifically, all content with access controls posted on a UGC platform should register a
digital decryption key to access the work on the platform. If a platform user wishes to access
the work for the sole purpose of creating a UGC for a non-commercial use, namely, a use
through which the UGC creator cannot capture significant revenues as a direct consequence
of using the work, the user can ask the UGC platform for the key to the work. To prevent
users from abusing the levy scheme, the UGC platform should freeze the requesting user’s
account at the regular price for gaining access. When the UGC platform has received notice
that the UGC has been created, the UGC platform should substantially evaluate whether
the UGC meets the conditions of the levy scheme or other statutory exceptions. The sole
purpose test involves fact-intensive analysis. For example, requiring the key to popular
songs or TV shows would be far less likely to establish such a sole purpose than requiring
the key to out of commerce works. If the UGC can be covered by the proposed levy scheme
or other statutory exceptions, the UGC platform should expeditiously unfreeze the user’s
account. The levies should be jointly collected and allocated with the levies under the non-
commercial UGC creation levy scheme.
8.2.3 Non-commercial UGC access exemption

Chapter 4 also proposed a UGC access exception to allow a UGC creator to circumvent
the access control of copyrighted works outside the UGC platform the UGC creator wishes
to post his/her future UGC(s) on.
Access-controlled works hosted on UGC platforms could be covered by the non-
commercial UGC access levy scheme. If the access-controlled work is not placed on a
UGC platform, the user could ask the platform to invite the copyright owner to publish his/
her access-controlled work on the UGC platform together with the decryption key to the
access. If the copyright owner accepts, the access-controlled work would be hosted by the
UGC platform, and the UGC access levy scheme would be applied. If the copyright owner
refuses, the user could still be exempt from circumventing the access control to the work by

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