Page 59 - 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

from patent law, finding that the filmmaker made a product that could only be used for the
infringing purpose of performing publicly and therefore should be jointly liable for copyright
193
infringement.
The Supreme Court’s pragmatic approach solved two difficult problems: how to treat
film as an extended form of books and drama, and who should be responsible for the
infringement. In this way, it eliminated the barriers to incorporating film into copyright
law. Consequently, Congress passed the 1912 Townsend Amendment acknowledging
194
dramatic motion pictures as a category of copyrightable subject matter, and film adaptation
as an independent concept subject to copyright owners’ control. In response, the film industry
lobbied Congress to limit the damages filmmakers would have to pay for unauthorised
195
adaptation. This was supported by Congress and a threshold for damages was established
with respect to innocent infringement of an ‘undramatized or nondramatic work by means of
a motion picture’ to a maximum of $100. 196
Just as the Edison v. Lubin decision had led to the establishment of a monopoly, the
Edison Trust, by prohibiting film piracy, the Ben-Hur decision had profound implications for
the industrial structure of films. The need to pay for adaptation encouraged film companies
to seek exclusive licences from publishers and theatre producers. Film companies that
formed strong alliances with publishers and theatre producers became the major film
studios, replacing the Edison Trust and eventually growing into multinational media
conglomerates. 197
2) Airing films on television: Fair use and compulsory licensing of secondary
transmissions by the cable system
The rise of television in the 1950s created a new channel of film distribution, triggering
a new round in the copyright war. Film producers complained that TV provided a new
way for consumers to enjoy films at a lower price, and thus they wanted to control the
new distribution channel. In opposition, TV operators argued that they had made massive
investments in the new distribution technology that promoted the dissemination of films
and made them more widely known. The dispute culminated in the seminal decision of
Fortnightly Corp v. United Artists Television. United Artists Television, the copyright
198
owner of several motion pictures, sued Fortnightly Corporation, a cable television operator,

193 Kalem Co. v. Harper Bros., 222 U.S. 55, 61 (1911).
194 Decherney (n 179) 42.
195 Ibid.
196 William F. Patry, Copyright Law and Practice, note 212 <http://digital-law-online.info/patry/patry7.html> accessed 16 May
2019 citing Section 25(b) of the 1909 Act, as amended by the Townsend Amendment.
197 David Bordwell, Janet Staiger and Kristin Thompson, The Classical Hollywood Cinema: Film Style & Mode of Production
to 1960 (Columbia University Press 1987) 132; Eileen Bowser, The Transformation of Cinema: 1907-1915 (Scribner 1990)
227.
198 392 U.S. 390 (1968).

• 45 •