Page 99 - 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

rule does not realize the significant role of UGC platforms as the distributors of copyrighted
works contained in UGC. Accordingly, some legislative proposals have shifted their attention
from UGC platforms’ ex-post obligation of removing infringing content, to the ex-ante
obligation of acquiring copyright license, from minimizing unauthorized use to maximizing
authorized use. For example, the DSM Directive states that a UGC platform should be liable
for infringing uses of copyrighted works committed by users unless the UGC platform
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can prove it has given its ‘best efforts to obtain an authorisation’. The US proposed an
‘intermediary licence’ rule in the Green Paper issued in 2013, indicating that a UGC platform
could be required to seek a copyright licence to make copyrighted works available on its
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platform. In this way, UGC creators are authorised to use the licenced works to create
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UGCs. The Music Modernization Act passed in September 2018 by the US Congress is
also underpinned by the intermediary licence approach. The Act introduced a new collective
society, the Mechanical Licensing Collective (MLC), which is presumed to have the world’s
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most thorough copyright database of musical compositions. The MLC is required to issue
compulsory licences to all music streaming services, which can spread the licence fees to
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service subscribers.
These legislative solutions correctly resonate with the re-intermediary roles of UGC
platforms, but they also seem to overburden the UGC platforms. The Music Modernization
Act applies to music streaming services that belong to the category of user-distributors
because the streaming services voluntarily perform copyrighted works and make them
available to subscribers. The compulsory licence under the Music Modernization Act
corresponds with the role of streaming services as user-distributors. Alternatively, under the
DSM Directive and the Green Paper the duty of UGC platforms to obtain licences appears
to misunderstand the role of UGC platforms by also treating them as user-distributors. As
illustrated in Section 3.4.1, UGC platforms have departed from the role of passive ISPs,
but they have not gone as far as user-distributors. It is the UGC creators who have used
copyrighted works to create UGCs and uploaded UGCs to UGC platforms. UGC platforms
have merely facilitated the creation and distribution of UGCs in which UGC creators have
used copyrighted works. Therefore, UGC platforms have played a role that has more in
common with facilitator-distributors, not user-distributors.
Drawing on historical experience with the rules governing facilitator-distributors, I
suggest that UGC platforms should be subject to levy schemes that cover their facilitation
of the process in which copyrighted material is used by large numbers of platform users

267 DSM Directive, art 17.4(a).
268 The Department of Commerce Internet Policy Task Force, Green Paper on Copyright Policy, Creativity, and Innovation in the
Digital Economy (July 2013) 32.
269 Ibid.
270 H.R.5447 - Music Modernization Act, 115th Congress (2017-2018).
271 Ibid.

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