Page 135 - 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 5 Formulating a Non-commercial UGC Creation Levy Scheme
An Intermediary-oriented Approach

(CJEU) analogised the appropriation of photography to using a quotation from a book because
the photography being used had been made available to the public lawfully and the name of
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the photograph’s author was mentioned. As the CJEU’s decision extended the context of
quotations from literary works to photographic works, it was expected to open the door for
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user-generated audiovisual or musical works to be treated as quotations and an exempted use.
Nevertheless, no further decisions have been made on whether to categorise UGC creations
as quotations. Although some scholarly proposals have suggested that the pastiche privilege
could be interpreted to cover the entire category of UGCs, such proposals are not binding on
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the courts. The legal status of UGCs falling outside the enumerated categories has remained
unclear and has depended on judicial interpretation in individual cases.
Due to its openness, fair use seems to be a better candidate than fair dealing to
accommodate UGC creation. Nevertheless, the application of fair use to UGC creation has
also been a subject of consistent debate. The fair use decision follows the four-factor test:
(i) the purpose and nature of the use; (ii) the nature of the copyrighted work; (ii) the amount
and substantiality of the portion used in relation to the copyrighted work; and (iv) the effect
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of the use on the potential market for or value of the copyrighted work. The first and third
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factors have been most frequently invoked as defenses for UGC creation. The second
factor, under which the most important prong is whether the pre-existing work a factual
or creative work, usually weighs against UGC creators since most UGCs are based on
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creative works. The fourth factor, ‘market effect’, as Barton Beebe observed, is a metafactor
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incorporating courts’ analyses of the other three factors, especially the first factor. As the
US Supreme Court admitted, courts have tended to mistakenly establish market harm under
the fourth factor based on commercial uses under the first factor. Therefore, the following
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discussion of how has the fair use doctrine been applied to protect UGC creation will be
focused on the first and third factors.
The first factor cnsists of two important sub-fctors, commercial use and transformative
use. Though Campbell v. Acuff-Rose established the precedent that commercial parody could
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still constitute fair use, in Warner Bros. v. RDB Books, the court rejected the fan-defendant’s
15 Eva-Maria Painer v. Standard Verlags GmbH and others (CJEU-C/145/10), para 21.
16 Guilda Rostama, ‘Remix Culture and Amateur Creativity: A Copyright Dilemma’ [2015] WIPO Magazine 22, 24
17 Martin Senftleben, ‘Bermuda Triangle – Licensing, Filtering and Privileging User-Generated Content Under the New
Directive on Copyright in the Digital Single Market’ (April 4, 2019). available at SSRN: <https://ssrn.com/abstract=3367219>
or <http://dx.doi.org/10.2139/ssrn.3367219> 14.
18 17 U.S. Code § 107.
19 Gervais, ‘The Tangled Web of UGC’ (n 10) 843-844.
20 Barton Beebe, ‘An Empirical Study of US Copyright Fair Use Opinions, 1978-2005’ (2008) 156 University of Pennsylvania
Law Review 549, 610.
21 Ibid 617.
22 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 570 (1994).
23 510 U.S. 569 (1994), followed by Suntrust v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001). (the Eleventh Circuit
Court of Appeals held that a parody of Margaret Mitchell’s Gone with the Wind was a fair use)

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