Page 44 - 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

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public. The public has wanted enhanced access to a wide range of knowledge with more
new books, which could only be realised if the total cost of producing and distributing books
could be undertaken by an entity in advance and then spread to individual buyers in the form
of reasonable book prices.
Because of their strong ability to self-finance, professional publishers have a competitive
advantage when undertaking the production and distribution of cultural products. This is
vital because seeking an external source of capital for cultural production and distribution
is extremely difficult. Cultural market has been called the ‘nobody knows’ market, because
it inherently entails information uncertainty and high risk. The uncertainty of the cultural
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market coupled with the publishers’ financing capability have encouraged publishers to
invest in a diversified portfolio of cultural products. Thus, they have invested in both
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high-risk products with high returns and more reliable products with lower returns. This
investment strategy in turn has promoted cultural diversity. To accelerate their return on
investment, publishers have had every incentive to widen the distribution of works at
affordable prices. In sum, the disintermediate reading market has fostered an intermediate
mode of cultural production and an intermediary-oriented copyright law.
As Julie Cohen explained, copyright provides more incentives for intermediaries to
coordinate and govern problems about information resources, than for authors to create
information. Accordingly, this thesis suggests that copyright should not attempt to generally
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weaken or eliminate the intermediary publishers’ copyright, but secure the end users’ access
and use of copyrighted works by enforcing copyright against the intermediary distributors
rather than the end users. In the context of publishing intermediaries, publishers have
become the producers of copyrighted work and they have internalised the function of the
distributors (booksellers). However, as the next part of the thesis elucidates, producers and
distributors have become divided with the advent of new technologies, and copyright law has
developed along with disputes over whether the producer’s copyright should extend to the
new distribution channel.

2.3 The Development of Copyright: The Battle between Producers
and Distributors

Section 2.2.2 discussed how copyright law originated from the printing intermediaries’
desire to secure their investment in producing and distributing works. This part shows how
copyright law developed through the producers’ demand to incorporate distributors into the

84 Jonathan M Barnett, ‘Copyright without Creators’ (2013) 9 Review of Law & Economics 389, 406.
85 Guy Pessach, ‘Deconstructing Disintermediation: A Skeptical Copyright Perspective’ (2012) 31 Cardozo Arts &
Entertainment Law Journal 833, 859; Barnett (n 84) 402.
86 Pessach, ‘Deconstructing Disintermediation: A Skeptical Copyright Perspective’ (n 85) 859.
87 Julie E Cohen, ‘Copyright as Property in the Post-Industrial Economy: A Research Agenda’ (2011) 2 Wisconsin Law Review
141, 153.

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