Page 68 - 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

i.e., the providers of devices that facilitate users’ use of copyrighted works, are referred to as
facilitator-distributors. Because these distributors facilitated and profited from users’ use of
copyrighted works, they were still required to remunerate copyright owners, usually through
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levy schemes. Compared to the non-proprietary rules governing user-distributors, levy
schemes focused more on the profits the facilitator-distributors made from the use than on the
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specific number of times and ways how users used the copyrighted works. For copyright
owners, levy schemes represented remuneration more than compensation. 19
ISPs under the safe harbour doctrine have played an even more passive role than
facilitator-distributors. The DMCA strictly limits the application of the safe harbour doctrine
to ISPs that perform the following functions: (i) transitory digital network communications,
(ii) system caching, (iii) storage of information residing on systems or networks at the
direction of the users and (iv) information location tools. Similarly, the eCommerce
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Directive passed by the EU covers ISPs that transmit, cache or host third-party content.
The categories of privileged ISPs, and the specific conditions discussed in Section 3.2.2 for
ISPs to be shielded by the safe harbour doctrine, indicate that the safe harbour doctrine only
protects ISPs that provide technical, passive and content-neutral services for copyrighted
works generated by third parties. ISPs do not supply tools that facilitate users’ distribution of
copyrighted works. Nor are they primarily designed or used to facilitate users’ distribution.
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ISPs’ passiveness and neutrality are the prerequisites for them to enter the safe harbour.
According to the analysis of how copyright rules have evolved with the advancement
of technology (see Section 2.3), the copyright rules for distributors have corresponded to
the distributors’ character. User-distributors, such as libraries, piano roll manufacturers,
broadcasters and cable TV operators have been subject to both proprietary and non-
proprietary rules focused on the use of copyrighted works. Facilitator-distributors, such as
photocopier makers and audio/video recorder manufacturers, have been governed by levy
schemes that have paid less attention to distributors’ seeking licences based on the way the
work is used, and more on the distributors’ remuneration to copyright owners regardless
of how the work is used. Because ISPs neither engage in nor facilitate the use but merely
provide passive, technical service to the use, it is reasonable to place ISPs in an even weaker
regime: the safe harbour doctrine that exempts ISPs from liability for users’ infringements.

17 See notes 118-120 (photocopiers), notes 157-159, 164-165 (digital audio recorders) in Chapter 1, and accompanying text.
18 More discussion in Section 5.3.3.
19 Section 5.4.3.
20 17 U.S. Code § 512 (a)~(d). Bill C-60 passed by Canada in 2005 extended ISPs’ safe harbour from ISPs that merely
communicate the information to ISPs that provide system caching, which is interpreted as two branches: reproduction and
communication.
21 Electronic Commerce Directive E 2000/31/EC, art 12-14.
22 17 U.S. Code § 512. The threshold requirements and other conditions for an ISP to become exempted from infringement
liability can only stand when the ISP plays a neutral and passive role in the transmission of content. More discussion in
Section 3.2.2.

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