Page 56 - 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

three-tier system of performance rights. Copyright owners of sound recordings were (i) given
an exclusive right to digital audio transmissions made by an interactive Internet service, (ii)
given a right to collect royalties, subject to a statutory licence scheme, from digital audio
transmissions through a non-interactive subscription and (iii) told to allow non-subscription
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broadcast transmissions.
By extending copyright to the newly emerging interactive transmission channel while
preserving the freedom to use copyrighted works in other distribution channels, this narrowly
crafted system responded to the copyright owners’ concern over the new digital technology.
It also prevented the long-term business and contractual relationships between record
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producers and broadcasters from being destroyed. Copyright merely covered the provider
of the interactive service, namely, the distributor. Because the ability to distribute had not
yet shifted to the end users, the service provider was generally the uploader. The massive
numbers of downloaders, the end users, were not regulated unless they simultaneously
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accessed the downloaded file during the downloading process. Nevertheless, this was the
last presentation of the intermediary-oriented and end-user-exempt approach under copyright
law. The next important legislation, the Digital Millennium Copyright Act (DMCA), replaced
the intermediary-oriented approach with a user-targeted strategy.
6) The challenges of streaming: The 1998 Digital Millennium Copyright Act (DMCA)
The 1995 DPRA had mainly targeted the Internet-based digital audio subscription
service while allowing FCC (Federal Communications Commission)-licenced radio stations
to broadcast music for free. However, the Internet boom soon invited a new technology,
streaming, which significantly challenged the scope of the public performance right under the
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DPRA. The streaming process uses encoding software that compresses and converts audio
content into a streaming format. Thereafter, a server makes the stream available over the
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Internet. The stream is distributed live to the listener’s computer and creates a temporary
file on the listener’s hard drive. Without going to the trouble of downloading the file, listeners
can hear the music through decoding software, usually in the form of an audio player, that
retrieves, decompresses and translates the stream into sounds. Because webcasting enables
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FCC-licensed radio stations to retransmit their signals over the Internet without having to
create a separate webcast programme, by 1998, webcasting had proliferated with hundreds

170 17 U.S. Code § 114 (d)(1)(B)(i)(I).
171 H. Rept. 104-274, at 12 (1995).
172 U.S. v. ASCAP (in the Matter of Applications of RealNetworks, Inc., Yahoo! Inc.) Docket Nos. 09-0539-cv (L), 09-0542-cv
(con), 09-0666-cv (xap), 09-0692-cv (xap), 09-1572-cv (xap) (2d Cir. 2010).
173 H. Rept. 105-796, at 83 (1998).
174 Joseph E. Magri, ‘New Media - New Rules: The Digital Performance Right and Streaming Media over the Internet’ (2003) 6
Vanderbilt Journal of Entertainment & Technology Law 55, 56.
175 Azine Farzami, ‘Bonneville v. Register of Copyrights: Broadcasters’ Upstream Battle over Streaming Rights’ (2003) 11
CommLaw Conspectus 203, 204.

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