Page 136 - 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

fair use defence because, among other factors, the fan-created book was used for commercial
purpose and would directly compete with and harm the market for Rowling’s planned
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encyclopaedia. UGC creation relies more on ‘transformative use’ because transformative
use covers an open category of purposes, including without limitation criticism, comment,
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news reporting and research. In Cariou v. Prince, which upheld the digital alteration of
photographs as fair use, the Second Circuit Court of Appeals found that a secondary work
could constitute a transformative and fair use even if its purpose was beyond the enumerated
examples in the statutory provision. Conversely, in a case regarding the fairness of
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fanfiction, the same court held that fanfiction was unlikely to pass the fair use test because it
did not ‘critique or comment on the [original] work itself’. 27
In defining transformative use, the courts have developed two standards of
transformativeness. The traditional inquiry into transformative use has focused on whether
the use ‘adds something new, with a further purpose or different character, altering the first
with new expression, meaning, or message’, or ‘merely superced[es] the objects of the
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original creation’. However, in Sony Co. v. Universal City a different transformative use
standard was introduced. Goldstein called it ‘new distribution’ and Daniel Gervais called
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it ‘recontextualisation’. The new ‘recontextualisation’ standard shifts the focus from the
transformation of content and expression to the transformation of context and distribution
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channels. As long as the UGC reproduces the pre-existing work in a new context that
attracts a new audience, it satisfies the transformative requirement even without a change of
content. That is why full copies of books for search functions and snippet views, copying
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32
33
34
thumbnail images or previews, reproducing case briefs to create a legal research tool, full-
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text copies of copyrighted material used to design an anti-plagiarism tool have all been
24 575 F.Supp.2d 513, 550 (S.D.N.Y. 2008).
25 17 U.S. Code § 107.
nd
26 Cariou v. Prince, 714 F.3d 694, 713 (2 Cir. 2013). See also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
nd
(commercial parody can constitute fair use) Blanch v. Koons, 467 F.3d 244, 249–50 (2 Cir. 2006) (digital alteration of a
photograph can constitute fair use); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2 Cir. 2006) (use of
nd
scaled down photographs in an anthology of the Grateful Dead can constitute fair use).
nd
27 Salinger v. Colting, 607 F.3d 68, 73 (2 Cir., 2010).
th
28 Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994); Kelly v. Arriba Soft Corporation, 336 F.3d 811, 818 (9 Cir. 2003).
29 Jane C Ginsburg, ‘Fair Use for Free, or Permitted-but-Paid’ (2014) 29 Berkeley Technology Law Journal 1, 1; Gervais, ‘The
Tangled Web of UGC’ (n 10) 862.
30 Ginsburg, ‘Fair Use for Free, or Permitted-but-Paid’ (n 29) 2.
31 Ibid; Gervais, ‘The Tangled Web of UGC’ (n 10) 862 .
32 Authors Guild v. HathiTrust, 755 F.3d 87 (2 Cir. 2014). Authors Guild v. Google, Inc., 804 F.3d 202 (2 Cir. 2015).
nd
nd
th
33 Kelly v. Arriba Soft Corp., 280 F.3d 934 (9 Cir. 2002).
34 White v. West Publishing Corp., 1:12-cv-01340-JSR (S.D.N.Y. July 3, 2014).
35 A.V. ex rel. Vanderhye v. iParadigms, L.L.C., 562 F.3d 630 (4th Cir. 2009).

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