Page 97 - 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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from which the UGC gains insight. Correspondingly, liability should be imposed on
the UGC platform rather than the individual user, in the same way that copyright law has
imposed liability on distributors rather than end users for the past three centuries.
Imposing liability on individual users would not only hamper creativity, but would
encourage violations of the law. Given the countless number of individual users and the cost
of litigation, targeted users would be randomly chosen. If a user knows that there is only a
small probability of being sued and that she/he cannot control such probability, she/he would
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have no incentive to obey the law. Conversely, if an intermediary knows it is liable for
users’ infringements, it would try its best to find ways to reduce infringements due to the
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threat of being sued. When lawful uses co-exist with unlawful uses and it is prohibitively
expensive to distinguish between the two, imposing liability on UGC platforms could be
more efficient than spending a significant amount to try (probably in vain) to distinguish
lawful from unlawful activity. Because in the former case, UGC platforms can increase the
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subscription fees paid by users. Although it could discourage both lawful and unlawful use, it
would still be more efficient if unlawful use was more sensitive to price and the benefits from
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increasing copyright incentives exceeded the harm brought by discouraging lawful uses.
Even though it might be inefficient because users conducting lawful activities would pay for
users performing unlawful activities, in this thesis it is regarded as an evitable institutional
cost. After all, you cannot have the cake and eat it too.

3.4.3 Recrafting an intermediary-oriented approach in the UGC age
The inapplicability of the safe harbour doctrine and the inefficiency of imposing
individual liability have engendered the imposition of copyright liability on UGC platforms.
Most research, however, has focused on the obligation to proactively monitor infringing
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activities. Giancarlo Frosio, for example, observed that ‘the death of “no monitoring
obligations” has become “a well-marked trend in intermediary liability policy”’ because
of the rapidly-emerging models of online private enforcement and intermediaries’ self-
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intervention. Based on the active role online intermediaries have played in enforcing
copyright, Jeremy Beer and Christopher Clemmer embraced the shift from the passive-
reactive approach to an active-preventative approach to UGC platforms’ copyright liability

253 I distinguish the true end users (non-commercial UGC creators) from the commercial UGC creators in Chapters 4 and 5, and
clarify that only non-commercial UGC creators can be sheltered by the intermediary-oriented approach.
254 Douglas Lichtman and William Landes, ‘Indirect Liability for Copyright Infringement: An Economic Perspective’ (2002) 16
Harvard Journal of Law & Technology 395, 409.
255 Ibid.
256 Ibid 410.
257 Ibid.
258 Frosio (n 231) 203.
259 Ibid.

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