Page 98 - 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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for UGC. As Section 3.4.1 shows, courts in various jurisdictions have also paid increasing
attention to UGC platforms’ monitoring obligation. Further, UGC platforms’ ex-post
liability for monitoring and removing infringements has been endorsed by the recently
passed EU’s DSM Directive. It requires UGC platforms to give their ‘best efforts to ensure
the unavailability of’ infringing content and their ‘best efforts to prevent future uploads’ of
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infringing content that was expeditiously removed after the UGC platform received notice.
In industrial practice, UGC platforms have voluntarily assumed the monitoring
obligation by cooperating with copyright owners and adopting content identification
technologies. Developing a sophisticated content identification system involves fairly high
costs. However, the system can protect UGC platforms from the risk of being sued, achieve
economies of scale and boost the platform’s profits by encouraging collaboration with
copyright owners. Adopting content identification technology brings UGC platforms more
profits than costs. For instance, in 2007, YouTube implemented Content ID that compares
the copyrighted reference file with the user-uploaded file. Once a match is found, the
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match policy pre-determined by the copyright owner is applied and the user-uploaded file
is monetised, tracked, or blocked. The Content ID system has been recognised by the
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copyright industry, and YouTube has gained many opportunities for collaboration. In 2007,
other leading ISPs, including Soapbox on MSN Video, MySpace, Dailymotion and Veoh.
com, together with leading copyright players including CBS, Disney, Fox, NBC Universal,
Viacom and Sony, established a series of principles for UGC services (known as UGC
264
Principles). One of the critical terms of the UGC Principles is that ISPs should apply state-
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of-the-art filtering technology to identify infringing activities. Facebook also developed its
own content identification technology in 2016 to monitor and filter user-uploaded content. 266
Nevertheless, reforming safe harbor rule and imposing ex-post filtering obligation on
UGC platforms are still inefficient, considering the difficulty to determine whether a UGC
constitutes fair use or infringing use. In fact, by restricting online intermediaries’ role in
removing infringing material, either by notice or by red flag knowledge, the safe harbor

260 Jeremy De Beer and Christopher D Clemmer, ‘Global Trends in Online Copyright Enforcement: A Non-Neutral Role for
Network Intermediaries’ (2009) 49 Jurimetrcs 375, 375.
261 Directive of the European Parliament and of the Council on copyright in the Digital Single Market (Directive 2019/790), art
17.4(b) and (c).
262 Paul Sawers, ‘YouTube: We’ve Invested $100 Million in Content ID and Paid over $3 billion to rightsholders’ (MOBILE, 7
November 2018) <https://venturebeat.com/2018/11/07/youtube-weve-invested-100-million-in-content-id-and-paid-over-3-
billion-to-rightsholders/> accessed 20 May 2019.
263 YouTube Help, ‘Usage Policies and Match Policies’ <https://support.google.com/youtube/answer/107129?hl=en-GB>
accessed 18 June 2019.
264 Principles for User Generated Content Services <https://generated contentprinciples.com/> accessed 20 May 2019.
265 Ibid.
266 Mike Masnick, ‘Facebook Launches Its Own Version Of Content ID, Which Will Soon Be Abused To Take Down Content’
(TECHDIRT, 13 April 2016) <https://www.techdirt.com/articles/20160413/09154834169/facebook-launches-own-version-
contentid-which-will-soon-be-abused-to-take-down-content.shtml> accessed 20 May 2019.

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