Page 45 - 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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current copyright rules and the distributors’ argument that new technologies need new rules.
The battles between producers and distributors in turn have guaranteed a huge number of
users the freedom to access and use copyrighted works. The following narrative on the
history of copyright in the publishing, music and film industries, was developed mainly in
the context of the US copyright law. US historical data is readily available and can better
elucidate the interaction between copyright law and technology. Some EU copyright rules
are also discussed to further demonstrate the relationship between producers and distributors.

2.3.1 The publishing industry

As the first-generation intermediary in copyright history, the publishers’ business scope
strongly influenced the scope of the first copyright law. Under the US copyright act of 1790,
the subject matter of copyright comprised ‘books, maps and charts’ because these were the
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categories of cultural creation that publishers could control. The rights consisted of ‘vending,
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printing and publishing’, which represented the ways publishers exploited works. As other
kinds of creations began to be mass produced and widely disseminated, copyright protection
correspondingly extended to them. These included works of art such as etchings, engravings,
paintings and statuary. In addition to the right to ‘print, publish, vend and import’ that
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existed for literary works, copyrights for works of art also included the right ‘to copy’,
because copying a work of art would impair its authenticity, which is crucial to its value.
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However, the 1909 Act amending copyright extended ‘the right to copy’ to all copyrighted
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works. This change did not spawn many controversies at the time it was made because
copying a literary work cost much more than copying a work of art and publishers did not
consider copying to be a potential distribution channel.
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Photocopying disrupted the peace by sharply reducing the cost of copying. Anyone

with a photocopier could disseminate works without resorting to publishers. Photocopying
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technology was born in the early 20th century and was most commonly used in libraries.
Under this scenario, publishers were the producers of copyrighted works. Photocopier
manufacturers and libraries were the distributors, creating new ways to diffuse the works.

88 See the discussion of ‘producers’ and ‘distributors’ in Section 3.1.
89 US Copyright Act of 1790, Section 1; Landau (n 79) 281.
90 US Copyright Act of 1790, Section 1; Landau (n 79) 281.
91 Landau (n 79) 282.
92 Patterson and Lindberg (n1) 83.
93 US Copyright Office, An Act to Amend and Consolidate the Acts Respecting Copyright (4 March 1909) <http://law.scu.edu/
wp-content/uploads/hightech/1909%20Act%20as%20enacted.pdf> accessed 15 May 2019.
94 Due to the invention of photocopying that sharply reduced the cost of copying, ‘the right to copy’ would turn a large number
of photocopier users into infringers. That’s why Lyman Ray Patterson described the incorporation of ‘the right to copy’ as ‘an
error that eventually tilted the foundations of copyright law away from its public purpose to the cause of private gain’. See L.
Ray Patterson, ‘Free Speech, Copyright, and Fair Use’ (1987) 40 Vanderbilt Law Review 1, 40; Lessig (n 5) 268.
95 Miles O. Price, ‘Photocopying by Libraries and Copyright: A Precis’ (1960) 8 Library Trends 432, 432.

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