Page 96 - 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

the infringing activity’, the high profits have at least erected barriers to the safe harbour.
Section 3.2.1 summarised the two conditions for establishing the safe harbour doctrine.
The first concerns the online intermediaries’ passive, content-neutral role in distributing
content. The substantive management of and enormous profits from UGCs denote that UGC
platforms have failed to satisfy the first condition. The second condition, related to the
effectiveness of copyright enforcement through the copyright owners’ takedown notification
to ISPs, has also failed to work for UGC platforms. Similar to P2P providers, UGC platforms
have adopted P2P networks rather than the earlier client-server networks. This demonstrates
the inherent inefficiency of trying to enforce copyright through copyright owners’ take down
notices. More importantly, in the UGC context, the notice and take down privilege would
result in the removal of a colossal amount of users’ creative content. Due to advances in
user-friendly tools allowing amateurs to engage in creation or secondary creation based on
pre-existing works, most user-uploaded-content on UGC platforms is incorporated with the
users’ own creations. Copyright owners’ extra-legal privilege of sending takedown notices
to remove such content would significantly undermine the ultimate purpose of copyright, to
promote creativity and culture.

3.4.2 Inefficiency and injustice of individual liability

The inapplicability of the safe harbour doctrine to UGC platforms does not necessarily
lead to the conclusion that there should be a scheme for individual liability. Although some
commentators have asserted that the decline of transaction costs in the Internet age made
it possible for individuals to incur copyright liability, this thesis, concurring with many
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scholars, does not consider individual liability to be a good choice.
First, the Internet has reduced the cost of detecting infringement, but not the cost of
determining infringement. Determining the difference between infringement and non-
infringement is qualitative and involves considerable cost, which is even higher when a UGC
involves more than one pre-existing work. Although recently an increasing number of UGC
platforms have voluntarily implemented content identification systems, it would be difficult
and wrong to use quantitatively-based algorithmic technology to determine a fair-use issue
that is qualitative in nature. Hence, the cost of enforcing copyright against individuals is
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still high even in the UGC age. Further, as Chapter 2 discusses, the intermediary-oriented
approach not only responds to the high cost of enforcing copyright against individual users
but also strikes a fair balance between the right and the responsibility. It is the UGC platform
rather than the UGC creator who makes significant profits from using copyrighted works

251 Ryan Bates, ‘ Communication Breakdown: The Recording Industry's Pursuit of the Individual Music User, a Comparison of
U.S. and E.U. Copyright Protections for Internet Music File Sharing’ (2004) 25 Northwestern Journal of International Law &
Business 229, 230.
252 The US Supreme Court has favoured full copying in many fair-use decisions. See notes 20-27 in Chapter 4 and accompanying
text.

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