Page 49 - 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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revenue losses incurred by large-scale private photocopying. For example, in 1983, 25.5
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billion photocopies were made by individual users in Germany. Although each user only
had a modest influence on the market for the copyrighted works, a colossal number of
users would substantially harm the copyright owners’ interests. The imbalance between the
insignificant effect each individual user makes and the huge loss copyright owners suffer has
also occurred with user-generated content (UGC) creation. This is one of the reasons why
I suggest that levy schemes should cover non-commercial UGC creation. A more detailed
discussion on the justification for the proposed levy scheme is provided in Section 5.4.

2.3.2 The music industry

Musical works are known for their two-level protection for sheet music and sound
th
recordings. Before the 20 century, only sheet music was protected because it was printed
material subject to publishers’ mass production. Along with the development of recording
technology, sound recording producers have come a long way, changing from distributors to
producers, and from infringers to copyright holders.
1) Sheet music transmitted by phonograph recording: The compulsory licence for
mechanical reproduction of musical compositions (1909 Act)
Since the invention of the Gutenberg printing press, printed material has been the
dominant form of cultural products. People who wanted to enjoy music had to buy sheet
music and play it at home with an instrument or buy a ticket to a concert. The recording
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technology developed in the late 19 century enabled sheet music to be recorded onto piano
rolls and phonograph records that the audience could play on a player piano or phonograph
and enjoy the music at home. Under this scenario, sheet music publishers were the producers,
and the manufacturers of the piano rolls and phonograph records were the distributors. These
manufacturers created new ways to distribute and consume sheet music.
Although musical compositions were incorporated into the 1831 Copyright Act as a
type of copyrightable subject matter, the protection merely covered the right to copy and
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publish, without the right to publicly perform. Wanting to gain the profits generated
from the new means of distribution, composers and music publishers brought copyright
infringement suits against the manufacturers of phonograph records and piano rolls who
were also the manufacturers of phonographs and player pianos. In the most famous case,
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125
White-Smith Music Publishing Company v. Apollo Company, although the argument of the
uncompensated composers was intuitively appealing, the Supreme Court ruled in favour of

121 Hugenholtz, Guibault and van Geffen (n 119) 12.
122 Ibid.
123 U. S. Rev. Stat. 4952, U. S. Comp. Stat. Supp. 1907. p. 1021.
124 Stuart Banner, American Property: A History of How, Why, and What We Own (Harvard University Press 2011) 118; Sidney
Diamond, ‘Copyright Problems of the Phonograph Record Industry’ (1961) 15 Vanderbilt Law Review 419, 419.
125 209 U.S. 1 (1908).

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