Page 15 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

Chapter 1 Introduction

Chapter 1 Introduction

1.1 Background

Until very recently, users were passive recipients of copyrighted content produced by
copyright owners. The widely available digital tools that allow ordinary users to engage in
cultural creation, the hyper-connectivity of the Internet and the increasing amount of spare
1
time have resulted in what Clay Shirky called ‘cognitive surplus’. This in turn has given rise
to an unprecedented wave of user-generated-content (UGC). Despite the lack of a uniform
definition for UGC, a UGC has generally been characterised by (i) the public availability of
the Internet or its availability to a select group of people, (ii) a certain amount of creative
effort rather than the mere reproduction of pre-existing work and (iii) amateur creation
2
outside professional routines and practices. The place where a UGC is held is called a UGC
platform. Videos on YouTube, articles in Wikipedia, fan stories in Fanfiction, photos on
3
4
Instagram and book reviews on Amazon are all examples of UGCs on UGC platforms.
UGCs that are originally created is called user-authored content. Some UGCs are based
5
on the transformation or combination of pre-existing works. The latter is termed user-derived
content, examples of which include samplings, fan fictions, remixes, mashups, collages
6
and appropriations. Daniel Gervais also recognised user-copied content as a kind of UGC
because it can transform the context and distribution channel of pre-existing work even

* This thesis, especially Chapter 2, is based on the paper ‘Taking users Seriously: Proposed UGC Solutions for Spurring
Creativity in the Internet Age’ co-authored by the author of this thesis and her supervisor, Prof. Yahong Li, published in
Queen Mary Journal of Intellectual Property Volume 9 in 2019. Compared to the earlier version, the concept, substantive
content, structure and expression of this chapter has been substantially updated based on the valuable suggestions of Prof.
Yahong Li and the developments in copyright legislation, judicial decisions and scholarly writing during the past year.
1 Yahong Li and Weijie Huang, ‘Taking Users’ Rights Seriously: Proposed UGC Solutions for Spurring Creativity in the
Internet Age’ (2019) 9 Queen Mary Journal of Intellectual Property 61, 61 “Cognitive surplus” refers to the aggregation
of creative efforts donated by every person’s free time in the Internet age. While in the pre-Internet age, people prefer to
use their time to engage in consumptive activities such as watching TV. Clay Shirky, Cognitive Surplus: Creativity and
Generosity in a Connected Age (Penguin UK 2010)
2 OECD, Participative Web and UCC: Web 2.0, Wikis and Social Networking (2007) 18
When describing UGC as a work, this thesis considers UGC as a countable noun. Therefore, UGC is often used as ‘UGCs’
unless when it is referred to as a single work, or as an adjective (e.g., UGC platform). This usage applies to the whole
dissertation.
3 Ibid 32.
4 Alex Fenton, ‘The Second Life of the Amateur – User Generated Content and Web 2.0’ (Technology, 14 May 2008) <http://
alexfenton.co.uk/the-second-life-of-the-amateur/> accessed 12 May 2019.
5 Daniel Gervais, ‘The Tangled Web of UGC: Making Copyright Sense of User-Generated Content’ (2008) 11 Vanderbilt
Journal of Entertainment & Technology Law 841, 858
6 Ibid 858.

• 1 •