Page 100 - 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

(UGC creators) to create new content. UGC platforms are similar to traditional facilitator-
distributors such as the manufacturers of photocopiers and audio/video recorders in the
sense that there are many users partaking in the levied use. Just as countless users have
used photocopiers and recorders to reproduce copyrighted works for private, personal
purposes, innumerable Internet users have uploaded their UGCs to different UGC platforms.
Clay Shirky advanced the term ‘cognitive surplus’ to describe the massive scale of UGC
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creation. The statistics on UGC accord with Shirky’s observation: 400 hours of video
are uploaded to YouTube every minute, more than 12 hours of music is uploaded to
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SoundCloud each minute, over 100 million photos and videos are uploaded to Instagram
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each day, and 807,000 Harry Potter fanfictions and 220,000 Twilight fanfic stories have
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been shared on Fanfiction.net since 1998 when Fanfiction.net was founded. Compared
to traditional facilitator-distributors, UGC platforms are even more suited to levy schemes
because, among other factors, UGC creators make productive rather than consumptive use
of the copyrighted works. I propose two levy schemes. The first would cover the access
to access-controlled copyrighted works to create UGCs, which is explored in Chapter 4.
The other would cover the use of copyrighted works to create UGCs, which is discussed in
Chapter 5.
The role of UGC platforms, as distributors of pre-existing works in the form of UGCs,
has attracted heated debate. The other role of UGC platforms, as quasi-producers of UGCs,
has long been ignored. With the commercialisation of UGCs, attention should also be paid to
the producer dimension to ensure that the exploitation of UGCs by UGC platforms is fair and
properly remunerated. The producer perspective is discussed in Chapters 6 and 7. Chapter 6
examines the UGC platforms’ exploitation of UGCs and Chapter 7 investigates the platform
users’ exploitation of UGCs.
Attaching liability to UGC platforms for facilitating the distribution of copyrighted
works in the form of UGCs and promoting the fair exploitation of UGCs not only secures
the UGC creators’ freedom to gain access to and use copyrighted works to create UGCs, it
preserves the copyright owners’ right to remuneration from the use of copyrighted works,
and it protects UGC platforms from legal risks. In recent years, UGC platforms have
been increasingly brought into courtrooms by copyright owners whose works have been

272 Clay Shirky, Cognitive Surplus: Creativity and Generosity in a Connected Age 12 (Penguin UK 2010).
273 Kit Smith, ‘48 Fascinating and Incredible YouTube Statistics’ (Brandwatch, 4 May 2019) <https://www.brandwatch.com/
blog/youtube-stats/> accessed 12 June 2019.
274 Craig Smith, ‘16 Amazing SoundCloud Statistics and Facts (2019)’ (DMR, 9 June 2019) <https://expandedramblings.com/
index.php/soundcloud-statistics/> accessed 12 June 2019.
275 Omnicore, ‘Instagram by the Numbers: Stats, Demographics & Fun Facts’ (6 January 2019) <https://www.omnicoreagency.
com/instagram-statistics/> accessed 12 June 2019.
276 Fanfiction <https://www.fanfiction.net/book/> accessed 12 June 2019.

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