Page 34 - 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 2 Copyright in the Pre-Internet Age: An Intermediary-oriented Approach
An Intermediary-oriented Approach

6
categorisation. Litman divided copyright intermediaries into distributors and makers.
Distributors are intermediaries ‘that commonly make and distribute copies of works of
7
authorship and authorise other uses’ and own the copyrights. Publishing houses, record
8
labels and film studios are typical examples of distributors. Makers are those who ‘invent
and market devices and services for enjoying works of authorship, without themselves
9
engaging in licenced uses’ and therefore do not own copyrights. This group includes the
manufacturers of pianos, radios, televisions, tape recorders and computers. Litman’s
10
‘makers’ group does not include intermediaries who provide devices and services for
consumers to enjoy copyrighted works and who themselves engage in licenced use. These
intermediaries include manufacturers of piano rolls directly recording sheet music onto piano
rolls that are used in self-playing pianos, broadcasters directly playing magnetic recordings
11
12
of musical compositions so that consumers can listen to music via the radio, and cable TV
operators providing the public with copyrighted audio and video works. As discussed in
13
Section 2.3, this group of intermediaries that directly engage in licensed use have developed
new distribution channels and have attracted the attention of copyright owners.
Therefore, I extend Litman’s category of ‘makers’ to include device and service
providers who engage in licenced use, and I rename the ‘makers’ category. Henceforth, it
is referred to as ‘distributors’ because no matter whether the device and service providers
themselves engage in the licensed use, the devices and services they provide can be used to
distribute copyrighted works to new channels or media. I also rename Litman’s ‘distributors’
category, calling it ‘producers’ because publishing houses, record labels and film studios
produce innumerable copies of copyrighted works and profit from the sales of these copies.
For clarity, this thesis categorises copyright intermediaries into two groups: producers
and distributors. Producers are the entities that produce and distribute large numbers of
copies of copyrighted works. The technologies for producing and distributing cultural
products are capital intensive and easily free ridden. Thus, under copyright law producers
can gain the exclusive right to exploit the creators’ copyrighted works, which incentivises
them to produce and distribute the works. The producers are often publishing houses, record
labels and film studios. Distributors are the intermediaries that provide devices or services
that can be used to distribute or transmit copyrighted works to new channels or new media.
Typical examples of distributors include player piano manufacturers, broadcasters, cable

6 Litman, ‘Real Copyright Reform’ (n 1) 18.
7 Ibid. 18.
8 Ibid. 17.
9 Ibid. 18.
10 Ibid. 21.
11 Section 2.3.2.1.
12 Section 2.3.2.2.
13 Section 2.3.3.2.

• 20 •