Page 65 - 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 3 Copyright Rules for Online Intermediaries: From Safe Harbour to a New Intermediary Liability Scheme
An Intermediary-oriented Approach

Chapter 3 Copyright Rules for Online

Intermediaries: From Safe Harbour to a

New Intermediary Liability Scheme

3.1 Introduction

In the pre-Internet age, those with the ability to reproduce copyrighted works
transitioned from intermediaries to end users. The Internet age featured the democratisation
of the ability to distribute and even produce copyrighted works, coupled with a decline in the
cost of enforcing copyright against individuals. Hence, copyright owners were encouraged
to shift their target from the distribution intermediaries to the end users. The two most
representative copyright laws in the early Internet age, the Digital Millennium Copyright Act
(DMCA) enacted by the US in 1998 and the Electronic Commerce Directive (eCommerce
Directive) passed in the EU in 2000, were both characterised by the safe harbour doctrine, a
rule that exempts Internet service providers (ISPs) from liability for copyright infringements
committed by ISP users.
In the early stages of the Internet age, referred to as the era of Web 1.0, the safe harbour
doctrine aimed to protect certain ISPs. These ISPs, such as Internet access providers
1
and search engines, played a much more passive role in distributing copyrighted content
than traditional distributors such as broadcasters and cable television operators had in the
2
analogue age. These ISPs did not facilitate or profit from the distribution of copyrighted
works, but merely transmitted, cached, stored and located copyrighted works as passive
3
conduits. However, the breathing space provided by the robust safe harbour doctrine
engendered new online intermediaries such as P2P providers and UGC platforms that
4
characterise the age of Web 2.0. These new online intermediaries have taken a more active
1 Though there is not a clear line between Web 1.0 and Web 2.0, the DMCA and eCommerce Directive were both made in the
age of Web 1.0. Web 1.0 was characterised by hypertext which refers to the connection of online documents by hyperlinks.
Nevertheless, websites were not connected with each other. (William I. Wolff, ‘Interactivity and the Invisible: What Counts
as Writing in the Age of Web ’ (2013) 30 Computers and Composition 211, 218).
2 See infra notes 12 to 22 and accompanying text.
3 17 U.S. Code § 512 (a), (b), (c) and (d). Michael Driscoll, ‘Will YouTube Sail Into the DMCA’s Safe Harbor or Sink for
Internet Piracy?’ (2007) 6 The John Marshall Review of Intellectual Property Law 550, 555.
4 Though the definition of Web 2.0 is still highly contested, an important characteristic of Web 2.0 is its focus on online
platforms. As Tim O’Reilly argued, ‘The web as platform’ is the first Web 2.0 principle. (Tim O'Reilly, ‘What Is Web 2.0:
Design Patterns and Business Models for the Next Generation of Software’ (O'Reilly Network, 30 September 2005). <http://
facweb.cti.depaul.edu/jnowotarski/se425/What%20Is%20Web%202%20point%200.pdf> accessed 17 May 2019.) Maged N.
Kamel Boulos and Steve Wheeler also noted that Web 2.0 is structured around open interfaces of online platforms that enable
user participation. (Maged N. Kamel Boulos and Steve Wheeler, ‘The Emerging Web 2.0 Social Software: An Enabling Suite
of Sociable Technologies in Health and Health Care Education’ (2007) 24 Health Information and Libraries Journal 2, 3-4);
BitTorrent, Napster, blogging, wikis are common examples of platforms in the age of Web 2.0.
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