Page 48 - 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

have encountered a similar problem, trying to enforce copyright against large numbers
of users such as restaurants and bars. To remedy this, they have established collective
societies such as the American Society for Composers, Authors, and Publishers (ASCAP)
115
and Broadcast Music, Incorporated (BMI). Drawing on the collective management
strategy, publishers established the Copyright Clearance Center (CCC) to facilitate copyright
116
transactions at a pre-determined price. Thereafter, several cases were brought disputing
the need to seek permission from CCC to copy. After these ended in cash settlements with
117
CCC, it became a ritual for institutions to pay for ‘for-profit’ photocopying. Nevertheless,
individual end users have not been involved with photocopying lawsuits.
Disputes over whether the right to copy should extend to photocopying and whether
publishers could charge libraries and other distributors have run throughout the printing
industry. The US copyright system has managed to strike a balance between the publishers
and the distributors by enacting a narrowly tailored exemption: specific photocopying by
specific institutions such as libraries, coupled with a collective licensing scheme covering
photocopying in the public and commercial spheres by a class of distributors. Private and
non-commercial photocopying has mostly remained unregulated.
Apart from subjecting commercial and public photocopying to the exclusive copyright
regime, the EU copyright system has addressed private photocopying through a levy scheme.
In the 1985 revision to its copyright law, Germany extended the levy that had previously
been imposed on audio equipment to include reprographic photocopying devices used for
private photocopying. Since then, more and more EU member states have followed the
118
German approach and adopted private copying levies. Under private copying levies,
119
individual users can make private photocopies at no cost, but the providers (manufacturers,
importers, distributors) of the photocopying devices are required to remunerate the copyright
120
owners. The primary reason for imposing levies on private copying is the significant

115 Stanley M. Besen, Sheila N. Kirby and Steven C. Salop, ‘An Economic Analysis of Copyright Collectives’ (1992) 78 Virginia
Law Review 383, 385.
116 Copyright Clearance Center <http://www.copyright.com/> accessed 15 May 2019; Robert Maribe Branch and Mary Ann
Fitzgerald (eds), Educational Media and Technology Yearbook 1999: Volume 24 (Libraries Unlimited 1999) 117(‘CCC
provides licensing rights to thousands of academic institutions, libraries, government agencies, law firms, document
suppliers, copy shops, and bookstores within the US, as well as over 9,000 corporations and subsidiaries (including 90 of the
Fortune 100 companies)’.
117 Harper & Row Publishers v. American Cyanamid, 81 Civ. 7813 (S.D.N.Y.). Harper & Row Publishers v. Squibb Corp., 82
Civ. 2363 (S.D.N.Y.) (filed Apr. 14, 1982). American Geophysical Union v. Texaco, 32 Pat. Trademark & Copyright J. (BNA)
197 (S.D.N.Y. 1986) (85 Civ. 3446). Washington Business Information v. Collier, Shannon & Scott, 41 Pat. Trademark &
Copyright J. (BNA) 389 (E.D. Va. 1991) (91 Civ. 0305-A). Pasha Publications v. Enmark Gas, 19 Media L. Rep. (BNA)
2062 (N.D. Tex., Mar. 10, 1992).
118 IFRRO, ‘Copyright levies and Reprography’ (2008) 7-8 <http://www.ifrro.org/sites/default/files/Ifrro-Levy_Publication-9.pdf >
accessed 15 May 2019.
119 P. Bernt Hugenholtz, Lucie Guibault and Sjoerd van Geffen, The Future of Levies in A Digital Environment: Final Report
(Institute for Information Law 2003) 13.
120 Martin Kretschmer, Private Copying and Fair Compensation: An Empirical Study of Copyright Levies in Europe (Intellectual
Property Office 2012) 10; Hugenholtz, Guibault and van Geffen (n 119) 13.

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