Page 63 - 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

without limitation printers, photocopiers, faxes, scanners, compact cassettes, tapes, CDs,
audio recording devices, video cassettes, DVDs, video recording devices, memory chips,
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hard disks and personal computers.
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Although levy schemes and compulsory licensing are often mentioned jointly, an
essential but overlooked distinction between them is that levy schemes are imposed on
distributors who do not use copyrighted works but merely provide devices and services
that facilitate users’ use of copyrighted works. Conversely, compulsory licensing enforces
copyright law against distributors who are direct users. A primary reason levy schemes
have been introduced is that advances in new technology have led to a shift in the ability to
reproduce copyrighted works from professional distributors to large numbers of end users.
However, it is more reasonable and efficient to collect licensing fees from the professional
intermediate distributors who facilitate and profit from the end users’ use than to directly
collect them from the large numbers of end users whose use is normally for non-commercial,
personal purposes and has a marginal influence on the market for the copyrighted works.
The distributors who facilitate end users’ use of the works can raise the sale price of relevant
devices and services, and to compensate for the levies paid to copyright owners. Therefore,
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levy schemes have become more tailored to the technologies that have democratised the
ability to use copyrighted works.
When the distributors were direct users, the intermediary-oriented rules such as the
collective licence, compulsory licence, ‘reasonable fee’ claims and ‘maximum compensation’
threshold, attempted to reach a balance between securing the producers’ revenue and
promoting the development of new distribution technology. This also ensured the users’
access to the copyrighted works. When the distributors became the device or service
providers that facilitated users’ use, the intermediary-oriented rules such as the levy schemes
secured the end users’ freedom to access and use copyrighted works.

2.4 Conclusions

By exploring the history of cultural production and dissemination from the pre-copyright
era to the end of the pre-Internet copyright age, this chapter showed how copyright law
addressed large amount of unauthorized use through an intermediary-oriented approach for
centuries. Every time new technology emerged, courts and legislature have strived to balance
the incentives of producers to produce copyrighted works and the incentives of distributors

228 Hugenholtz, Guibault and van Geffen (n 119) 64.
229 For example, a report by an IPO in the UK suggested that there is no substantial difference between levies and compulsory
licences. Kretschmer (n 120) 60; Neil Netanel used ‘private copying levies’ and ‘compulsory licences’ jointly in his article
‘Impose a Non-commercial Use Levy to Allow Free Peer-to-Peer File Sharing’ without clarifying their differences. Neil
W. Netanel, ‘Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing’ (2003) Harv Journal of Law &
Technology 1, 31-35; More discussion in Chapter 5.
230 Nevertheless, according to a report issued by an IPO in the UK, the price of leviable devices in competitive markets such as
printers and photocopiers would not be influenced by levy schemes. Kretschmer (n 120) 64.

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