Page 55 - 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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(except for the UK, Ireland, Malta, Cyprus and Luxembourg). Although specific provisions
of the levy scheme (such as the recording time, the flat rate per device or per medium, etc.)
have varied by country, the legislators in all of these countries have attempted to balance the
interests of producers and distributors, which in turn has ensured the end users’ freedom to
make private use of copyrighted works. 165
The 1992 AHRA imposed levies on devices whose ‘primary purpose’ is to make digital
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audio copies of recordings for private use, leaving a loophole for personal computers. To
gain the revenue generated from digital downloading activity through computers and the
Internet, a few years later the copyright owner/producer camp launched a new war.
5) The rise of interactive service: The 1995 Digital Performance Right in Sound
Recordings Act (DPRA)
The 1971 Act had acknowledged the copyrightability of sound recording, and the 1992
Act formulated a levy scheme for private copying of sound recordings. The copyright of
sound recordings had not been extended to public performance yet, primarily because it
had not been proven that broadcasting had a negative impact on the recording industry. The
interactive service changed the parameter. Through interactive service, a service enables
167
access to and downloading of sound recordings on request. A consumer who has purchased
a compact disc could make it available to an endless number of potential consumers. Each
of these consumers could then use digital recording equipment to create a copy of the
downloaded recording without purchasing a sound recording themselves. This competes with
the record label’s distribution channel.
The law had lagged far behind. ‘Downloading’ of copyrighted music arguably did not
run afoul of the 1992 Act because a computer’s primary purpose is not to make digital
audio recordings. ‘Uploading’ was not covered by the 1971 Act because legislators had
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no concept of digital distribution at that time. Pursuant to the record companies’ lobbying
to incorporate digital transmissions into copyright regulations, the 1995 Digital Performing
Right of Sound Recording Act (DPRA) was enacted. This act protects the right to publicly
perform sound recordings through digital audio transmissions. Digital audio transmission is
defined as ‘a transmission in whole or in part in a digital or other non-analog format’.
169
Rather than offering a comprehensive performance right for sound recordings such as
the public performance right for musical compositions, the DPRA created a carefully crafted

164 Ia Culture Avec, ‘What is the Private Copy Levy?’ <http://www.copieprivee.org/en/la-copie-privee-cest-quoi/faq/> accessed
16 May 2019. (‘26 States introduced the principle of private copying, 22 States have a compensation system’); Kretschmer (n
120) 7.
165 Joel L. McKuin, ‘Home Audio Taping of Copyrighted Works and the Audio Home Recording Act of 1992: A Critical
Analysis’ (1993) 16 Hastings Communications and Entertainment Law Journal 311, 331.
166 Audio Home Recording Act of 1992, 1001 (3).
167 17 U.S. Code § 114 (j)(7).
168 17 U.S. Code § 1001 (3).
169 17 U.S. Code § 101.

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