Page 144 - 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

disputes over the distinction between transformative use and infringing use.
The search costs are also significant considering the large number of UGC creators
and copyright owners of source works. Video-based, music-based and image-based UGC
creation seem to bring more search costs than text-based UGC creation. In the pre-UGC age
or what Lawrence Lessig named the Read/Only (RO) age, text-based quotation is easier than
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reworking other types of works. In the UGC age, with the wide availability and continuous
improvement of software for amateur (re-)creation, “quoting” other types of works such
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as remixing videos, sampling songs and collaging pictures have become much easier.
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Whereas, text-based UGC creation, such as fanfiction and fansubs, take longer time and
require more writing skills because they are not simply ‘cut and paste’ but involve more
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creative, aesthetic efforts. Accordingly, it is expected that more users engage in video-
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based, music-based and image-based UGC creation than text-based creation. Moreover,
video-based, music-based and image-based UGC creation is based on large numbers of
source works while text-based UGC creation is usually based on a few popular works.
For example, in Fanfiction.net, a famous fanfiction website, only two books (Harry Potter
and Twilight) have attracted more than 100,000 fanfiction writers, and only 12 books have
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attracted more than 10,000 writers. Since video-based, music-based and image-based UGC
creation involve more UGC creators and more copyright owners of pre-existing works than
text-based UGC creation does, the former categories of UGC creation (video-based, music-
based, and image-based UGC creation) can take advantages of levy schemes better than text-
based UGC creation to alleviate transaction costs.
However, the cost of searching and enforcing copyright against individual UGC creators
has been significantly reduced due to the development of digital tracking and monitoring
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technologies. These have facilitated individual licensing and cast doubt on the need for
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a levy system. Consequently, Gowers Review of Intellectual Property recommended a
free private copying exception, rather than a remunerated levy, for the narrow purpose of

87 Lessig, Remix (n 73) 28, 36.
88 Ibid 51.
89 ‘Fanfiction (abbreviated ‘fanfic’) is fiction created by fans based on some original work (usually literary or cinematic), using
its plot, ideas, and characters.’ Anastasiia Overchuk, ‘Fan!fiction’ (Medium, 15 November 2018) <https://medium.com/litpop/
what-is-literature-or-my-story-about-fanfiction-world-75621201578a> accessed 19 July 2019.
‘A fansub (short for fan-subtitled) is a version of a foreign film or foreign television program which has been translated by
fans (as opposed to an officially licensed translation done by professionals) and subtitled into a language usually other than
that of the original’. Fansub in Wikipedia <https://en.wikipedia.org/wiki/Fansub> accessed 10 June 2019.
90 Though text-based UGC creation in social media platforms such as Twitter, Facebook and Wechat is easier and more popular,
this kind of UGC is usually user-authored-content without involving the use of pre-existing copyrighted works.
91 For example, YouTube, Tiktok, Flickr have a larger and more diversified uploader base than famous fanfiction websites such
as Fanfiction.net and Archive of Our Own.
92 Fanfiction.net <https://www.fanfiction.net/book/> accessed 23 July 2019.
93 Li (n 12) 33.
94 Natali Helberger and P. Bernt Hugenboltz, ‘No Place like Home for Making A Copy: Private Copying in European Copyright
Law and Consumer Law’ (2007) 22 Berkeley Technology Law Journal 1062, 1071.

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