Page 66 - 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

role in managing and promoting copyrighted content that is distributed or even created by
users. This is not what the legislators who enacted the safe harbour doctrine had in mind.
This chapter articulates the need for a new intermediary-oriented approach for UGC
copyright. By analysing the origin, purpose and application of the safe harbour doctrine,
Section 3.2 explains the reason for crafting it in the Web 1.0 era. Section 3.3 describes
how the safe harbour doctrine cannot be adapted to P2P technology and the negative
consequences of such incompatibility. Section 3.4 outlines UGC platforms’ further departure
from the safe harbour doctrine, and the inefficiency and injustice of imposing liability on
individual users. The chapter concludes with a call for a new intermediary liability scheme to
address UGC copyright.

3.2 A Robust Safe Harbour: Promoting Internet Development
and Strengthening Copyright Protection

3.2.1 The origins and purpose of the safe harbour doctrine
Online intermediaries are not new to Internet copyright law. In the early 1990s, the pre-
Internet copyright law imposed strict liability on ISPs for users’ copyright infringements. For
instance, the 1995 DPRA imposed liability on ISPs for individual subscribers’ infringements
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of the public performance right. In Playboy v. Frena, the first case to focus on ISP liability
for copyright infringement, the court held that the defendant, a bulletin board system
(BBS) operator was liable for distributing infringing materials that had been uploaded
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and downloaded by his users, regardless of whether he was aware of such images. On the
petition of the growing ISP industry, strict liability was replaced with secondary liability to
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reduce the burden on ISPs. For example, in Religious Technology Center v. Netcom On-
Line Communication Services, the court denied a direct infringement claim because it lacked
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‘some element of volition or causation’ needed to establish direct liability. The safe harbour
doctrine was prompted by, among other factors, the urgent need to develop domestic Internet
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technologies to maintain a national competitive edge in the 21 century. As the congressional
report noted, ISPs’ liability for third-party infringement required clarification for fear that
ISPs ‘may hesitate to make the necessary investment in the expansion of the speed and
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capacity of the Internet’.
Apart from being lobbied by the Internet industry, policymakers were also influenced

5 Digital Public Performance Right of Sound Recordings Act Section 3(d)(1); 17 U.S. Code § 114 (d)(1).
6 Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552, 1568 (M.D. Fla. 1993) (‘Intent or knowledge is not an element of
infringement, and thus even an innocent infringer is liable for infringement’).
7 Niva Elkin-Koren, ‘After Twenty Years: Revisiting Copyright Liability of Online Intermediaries’ in Susy Frankel and Daniel
Gervais (eds), The Evolution and Equilibrium of Copyright in the Digital Age (Cambridge University Press, 2014) 33.
8 Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361, 1370 (N.D. Cal. 1995);
also see CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004).
9 S. Rept.105-190, at 8 (1998).

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