Page 137 - 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

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regarded as transformative and fair use. This recontextualisation standard inclines toward
UGC creation because many UGC creators convert non-electronic content into digital
formats, such as creating online fanfiction based on non-digital novels and photographing
old photos by phone and uploading them to Flickr.
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Nevertheless, the new standard has been sharply contested and fiercely criticised, which
has pressured the court to retreat from this controversial point. For instance, in Fox News
v. TVEyes, TVEyes reproduced television shows on which Fox News had copyright, and
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incorporated them into a word-searchable database. The district court held that TVEyes’
re-distribution of Fox’s content was a fair use because it had a transformative purpose.
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Reaffirming that TVEye’s use was transformative, the Second Circuit court reversed the
fair use finding and sided with Fox on the ground that such redistribution deprived Fox of
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revenue that properly belonged to it as the copyright holder. The courts appear to have
placed more emphases on additional factors to jointly determine the fairness of the use,
rather than solely relying on its transformativeness.
The third factor, ‘the amount and substantiality of the portion used’, is also concerned
with UGC creation. Barton Beebe’s empirical study demonstrated that this factor is based
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more on a qualitative than a quantitative perspective. On the one hand, full copying
does not exclude the application of fair use, which corresponds to the recontextualisation
standard. On the other hand, any small portion of taking is unfair if it has ‘qualitative
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value to the copied material’, which means an abundance of the traditional ‘de minis use’
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defence. For example, Roy Export v. Columbia Broadcasting held that the defendant’s
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36 Other applications of the recontextualization standard include: representing concert posters in a book to tell the band’s history
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(Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605 (2 Cir. 2006)), republication of an entire newspaper story
to tell the public about police discrimination (Righthaven, L.L.C. v. Jama,. No. 2:10-CV-1322 JCM (LRL) (D. Nev. Apr. 22,
2011)), republication of video to demonstrate inconsistent statement (Caner v. Autry, 16 F. Supp. 3d 689 (WD Va. 2014)),
use of a famous artwork for biographical anchor (Warren Publishing Co. v. Spurlock, 645 F. Supp. 2d 402 (E.D. Pa.2009),
law firm’s copy of academic articles in patent prosecution process (American Institute of Physics v. Schwegman Lundberg
& Woessner, Case No. 12-528 (RHK/JJK) (D. Minn., July 30, 2013), Am. Inst. of Physics v. Winstead PC, No. 3:12- cv-
01230-M (N.D. Tex. Jan. 31, 2014); setting ‘cached’ links that allow users to access snapshots of web pages containing
others’ copyrighted material (Field v. Google Inc., 412 F.Supp. 2d 1106 (D. Nev. 2006)).
37 Gervais, ‘The Tangled Web of UGC’ (n 7) 862; Ginsburg, ‘Fair Use for Free, or Permitted-but-Paid’ (n 20) 1-2.
38 43 F. Supp. 3d 379 (S.D.N.Y. 2014).
39 Ibid 389.
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40 Fox News Network, LLC v. TVEyes, Inc., No. 15-3885 (2 Cir. 2018), at*19.
41 Beebe (n 20) 615.
42 See supra notes 30-37 and accompanying text.
43 Harper & Row v. Nation Enterprises, 471 U.S. 539, 565 (1985).
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44 Only a few cases that upheld this defense. Nihon Keizai Shimbum, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 71 (2 Cir.
1999) (holding that copying a paragraph of a news story was not infringing); Publications International, Ltd. v. Meredith
th
Corp., 88 F.3d 473, 480-81 (7 Cir. 1996) (holding that copying a recipe out of a collection of recipes was not infringing);
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Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 710 n.2 (7 Cir. 1972) (holding that copying a paragraph from a
label on a bottle of deodorant was not infringing). One can analogize it to efficient breach. But whether the same argument
can be made in the field of copyright law remains controversial. Cited from Gervais, ‘The Tangled Web of UGC’ (n 7), notes
54, 78.

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