Page 27 - 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

scale. Copyright law has continually evolved with the evolution of media, from printed
material, to magnetic phonographs, to broadcasting, to cassette players, to digital recording
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devices and then to Internet platforms. The research for this thesis focused on the
similarities and differences between Internet platforms and other media, drawing insight
from copyright history with previous media.
Economic analysis has provided some justification for producers’ being allowed to gain
copyrights from creators and enforce copyrights against distributors rather than the end
users, as Chapters 2 and 3 show. Chapters 4 and 5 rely on the ‘property rule/liability rule’
formulation proposed by the law and economic scholars Calabresi and Melamed to examine
the advantages of the permitted-but-paid rule over the exclusive regime, voluntary licensing
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schemes and unremunerated fair use/dealing rules in the context of UGC. Two permitted-
but-paid rules were compared: the compulsory licence scheme and the levy scheme. This
led to the conclusion that compulsory licences are tailored to professional use whereas levy
schemes are better suited to large-scale nonprofessional use. Chapter 7 uses Henry Smith’s
‘exclusion strategy/governance strategy’ theory to demonstrate the advantages of a tort-law
regime over a property-law regime in addressing the web scraping of UGC databases. 84

1.5.3 Empirical study

UGC creation is an everyday practice with a profound impact on society. Copyright
reform should take account of the general practice of UGCs and people’s attitudes to UGCs.
Otherwise it could be difficult to enforce. In this thesis, empirical study was needed to
achieve the following purposes:
(1) Learn the general practice of creating and using UGCs;
(2) Learn about UGC platforms’ and platform users’ exploitation of UGCs, and UGC
creators’ attitude toward others’ exploitation; and
(3) Learn the UGC creators’ knowledge of ToUs/ToSs and their attitudes towards UGC
platforms’ exploitation of UGCs.
Semi-structured personal interviews are one way to conduct a qualitative study. In this
thesis, they were coupled with online questionnaires and a study of 30 platforms’ ToUs/ToSs
for the quantitative analysis.
My application for ethical approval was approved by the Human Research Ethics
Committee (HREC) on September 2, 2016. The reference number is EA1608029. The
interview records, the online questionnaires and their results are incorporated into this

82 Marshall McLuhan, The Gutenberg Galaxy: The Making of Topographic Man (University of Toronto Press, 1962), 4. Tom
Standage, Writing on the Wall: Social Media-the First 2,000 Years (Bloomsbury Publishing USA, 2013), 1.
83 Guido Calabresi and A Douglas Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’
(1972) 85 Harvard Law Review 1089, 1106.
84 Henry Smith, ‘Exclusion versus Governance: Two Strategies for Delineating Property Rights’ (2002) 31
The Journal of Legal Studies S453, S454; Henry E Smith, ‘Intellectual Property as Property: Delineating Entitlements in
Information’ (2007) 116 Yale Law Journal 1742, 1743.

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