Page 67 - 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

by the powerful copyright industries. In exchange for abandoning litigation against ISPs,
copyright owners were provided with the extra-legal privilege of removing infringing
material. They could send takedown notifications to the ISPs, and have a subpoena issued
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requiring ISPs to disclose information on alleged infringers. These privileges accounted
for most of the cost of monitoring infringing activities that the DMCA had allocated to
the copyright owners. Because both the interests of the copyright owners (producers) and
the ISPs (distributors) were considered, the safe harbour doctrine passed without many
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difficulties.
A more essential but often overlooked reason for introducing the safe harbour doctrine is
that ISPs played a much more passive role in distributing copyrighted works than previous
distributors had. In the pre-Internet age, some distributors, such as libraries, player piano
manufacturers, broadcasters and cable television operators directly used the copyrighted
works. In this thesis they are referred to as user-distributors. As discussed in Chapter 2, user-
distributors were subject to both proprietary and non-proprietary copyright rules to maintain
a balance between the copyright owners’ revenue from exploiting copyrighted works and
the end users’ cost-effective access to copyrighted works. For example, libraries’ making a
small number of photocopies of copyrighted works might constitute fair use, whereas the
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photocopying of additional copies would be governed by individual or collective licensing.
A player piano manufacturer’s first recording of a musical composition would fall under
the exclusive copyright rule, whereas further recording of the recorded composition
13
would be subject to compulsory licensing. Broadcasters were required to seek a licence
from copyright collective societies but could bring a ‘reasonable fee’ claim to request
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a court-determined licensing fee. Cable companies’ transmissions of TV programmes
were governed by the exclusive copyright regime but retransmissions were subjected to
compulsory licensing schemes. 15
Some distributors, such as the manufacturers of photocopiers, video cassette recorders
and digital audio recorders, did not directly use the copyrighted works, but provided devices
to facilitate the use of the works. For example, photocopiers and recording devices were often
presented with other material necessary for reproduction, such as ink boxes and audio/video
tapes. These devices were designed primarily for or were closely associated with the purpose of
enabling users’ reproduction of copyrighted works. In this thesis, this category of distributor,
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10 17 U.S. Code § 512 (a) (b) (c) (d) (h).
11 S. Rept.105-190, at 48 (1998).
12 Section 2.3.1.
13 See note 130 in Chapter 1 and accompanying text.
14 See note 140 in Chapter 2 and accompanying text.
15 Section 2.3.3.
16 Martin Kretschmer, Private Copying and Fair Compensation: An Empirical Study of Copyright Levies in Europe (Intellectual
Property Office 2012) 12, 31.

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