Page 30 - 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

clause authorising UGC platforms, as the agents of the UGC creators, to take enforcement
actions against infringing third parties, (viii) the scope of the use of UGCs by UGC platform
users, (ix) the regulations on web scraping, and (x) the dispute resolution clause.

1.6 Structure

Chapter 2 builds a theoretical foundation for the intermediary-oriented approach to
copyright law through a historical study of its origins and evolution from the oral tradition
to the scribal tradition and finally to the industrial age. Copyright law is shown to have
originated from the requirements of publishers, namely the first-generation producers, and
developed with the ongoing battle between producers and distributors. Historically, when
distribution technology was not decentralised, the distributors were both the direct users
(e.g. player piano manufacturers and broadcasting companies) and the enforcement targets
of producers. With the decentralisation of distributing technologies, distributors such as
video cassette recorder manufacturers and digital audio recorder manufacturers departed
from direct use of copyrighted works and turned to merely providing devices and services
that facilitated the use of such works. Nevertheless, copyright law has continued to regulate
distributors. In this way, numerous end users can use copyrighted works via the latest
distribution technology at a reasonable price.
Chapter 3 explains why the intermediary-oriented approach that failed to work for
ISPs in the era of Web 1.0 can accommodate UGC platforms in the age of Web 2.0. Due to
ISPs’ passive role in merely transmitting or hosting third-party-generated information, and
the effectiveness of the notice and takedown provision controlling copyright infringement,
the safe harbour doctrine (which exempts ISPs from liability under certain circumstances)
has been construed as providing generous breathing space for Internet technology to
develop without prejudicing the interests of copyright owners. Nevertheless, new online
intermediaries such as UGC platforms, encouraged by the safe harbour rule, are incompatible
with the rule due to the active role UGC platforms play and the vast profits they earn from
managing content. A new intermediary-oriented rule is needed to address UGC platforms
that act as gatekeepers in the UGC age.
Chapter 4 proposes a levy scheme on UGC platforms to facilitate UGC creators’ access
to pre-existing copyrighted works on which UGCs are based. The shift in Internet copyright
law from targeting the intermediary distributors to targeting the end users has brought about
an anti-circumvention clause. To cope with the prohibitive effects of this clause on UGC
creation, this chapter construes UGC platforms as distributor intermediaries subject to a levy
scheme that remunerates the copyright owners (the producers) of the pre-existing works
on which UGCs are based. In return, the copyright owners of the works, with control over
access to their works, should register the decryption keys to access-controlled works on the
UGC platforms. The UGC platforms should then provide the keys to platform users who
request the keys solely for creating UGCs for non-commercial purposes. In this way, the

• 16 •