Page 77 - 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

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technologies, business strategies have prompted the innovation of network technology. That
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is why Professor Tim Wu called the safe harbour doctrine ‘the Magna Carta for Web 2.0’.
Nevertheless, as exhibited in the following parts of this thesis, the new online intermediaries
such as P2P (peer-to-peer) providers and UGC platforms spawned by the safe harbour
doctrine are inherently incompatible with the doctrine, which has engendered dramatic
tension between the old rule and new technology, and the need for a new rule. This process
is in line with Debora Spar’s cycle of ‘innovation—commercialisation—creative anarchy—
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new rules’, which describes the interaction between legal rules and new technology.
Although the theme of this thesis is the copyright liability of UGC platforms, I will
explore the copyright problems of P2P providers first because P2P is closely associated
with UGC in terms of both technology and copyright law. Analogue and early Internet
technologies brought about the democratisation of the ability to reproduce copyrighted
works. P2P technology has prompted the democratisation of the ability to distribute works
and UGC has given birth to the democratisation of the capacity to produce works. The
discussion of the copyright problems of P2P providers offers a better understanding of the
copyright challenges confronted by UGC platforms, and provides some insight into the
reconstruction of the copyright regime for UGC platforms.

3.3 Inadaptability of the Safe Harbour Rule to P2P

3.3.1 Inconclusive question of whether the safe harbour doctrine can be
applied to P2P networks

A few months after the passage of the DMCA in October 1998, a new kind of distribution
technology named peer-to-peer (P2P) emerged. It went beyond the four enumerated
categories of ISPs eligible for safe harbour: transmitting, caching, hosting third-party content
and providing information location tools. Every time a new technology has appeared,
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the classic question of whether the old rule could apply to the new technology has arisen.
In this case, the difference is that pre-Internet copyright laws adopted an intermediary-
oriented regime, so copyright owners (the producers) wanted to extend the old rule to new
distributors. In contrast, the Internet copyright laws have provided the intermediary-exempt
safe harbour doctrine, so it has been the new distributors, i.e., P2P providers such as Napster,
Aimster, Grokster and isoHunt, who have wanted to apply the old rule.
P2P is a fundamentally new distribution technology because it enables information to be

92 Debora L. Spar, Ruling the Waves: Cycles of Discovery, Chaos, and Wealth, from the Compass to the Internet (Harcourt
2002) 4.
93 Tim Wu, ‘Does YouTube Really Have Legal Problems’ (SLATE, 26 October 2006) at < http://www.slate.com/id/2152264/>
accessed 21 May 2019.
94 Spar (n 92) 5.
95 Bill C-60 passed by Canada in 2005 has extended ISPs’ safe harbours from ISPs that merely communicate the information to
ISPs that provide system caching, which is interpreted as two branches: reproduction and communication.

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