Page 69 - 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

Based on the discussion above, the conditions precipitating the safe harbour doctrine
can be boiled down to two: (i) copyright owners receive extra-legal privileges to enforce
copyright by sending notice to ISPs without invoking cumbersome legal procedures; and
(ii) ISPs assume a passive role in transmitting copyrighted content without facilitating or
profiting from consumers’ consumption of the content.
3.2.2 The conditions for the safe harbour doctrine

The conditions for ISPs to enjoy the protection of the safe harbour doctrine further
ensure that they remain passive and neutral.
1) The high entry thresholds for safe harbour
As noted in Section 3.2.1, to ensure that ISPs play a passive role in transmitting or
hosting copyrighted works, the safe harbour doctrine has restricted its scope to ISPs
that provide technical, passive and content-neutral services with regard to copyrighted
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information, such as acting as conduits for users’ communications, caching information to
reduce network congestion, hosting information at the direction of users and linking users
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25
26
to locations containing copyrighted content. Threshold requirements have been carved out
to secure the passiveness of ISPs. For example, the DMCA has three threshold requirements:
(i) the ISP is a ‘service provider’ that provides ‘online services or network access, or the
operator of facilities therefor’, (ii) the ISP has ‘adopted and reasonably implemented a
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termination policy for subscribers and account holders who are repeat infringers’, and
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(iii) the ISP accommodates and does not interfere with ‘standard technical measures’ that
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copyright owners use to protect their works.
To ensure ISPs’ passiveness with respect to the distribution of content, apart from
the threshold requirements that ISPs must meet, the DMCA also proscribes the elements
that ISPs should follow to avoid secondary infringements. The first ‘do not’ element is
the knowledge element associated with contributory liability. An ISP would be liable for
contributory infringement if it had actual or constructive knowledge of, and materially
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contributed to, an infringing activity committed by its users. The ISP could also be held
23 S. Rept. 105-190, at 41 (1998).
24 S. Rept. 105-190, at 42 (1998).
25 S. Rept. 105-190, at 44 (1998).
26 S. Rept. 105-190, at 47 (1998).
27 17 U.S. C. § 512 (i)(1).
28 17 U.S.C. § 512(i)(1)(A)
29 17 U.S.C. § 512(i)(1)(B)
30 17 U.S.C. § 512 (c)(A). Strictly speaking, contributory liability consists of two elements: knowledge and a material
contribution. Material contribution takes a variety forms, including without limitation inducing, encouraging, assisting or
otherwise facilitating the infringement by providing the means or the facilities for the infringing acts. Material contribution is
easy to establish and debates over contributory liability have often arisen from the knowledge condition. See Yahong Li and
Weijie Huang, ‘Taking users’ rights seriously: proposed UGC solutions for spurring creativity in the Internet age’ (2019) 9
Queen Mary Journal of Intellectual Property 61 note 144.

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