Page 171 - 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 6 UGC Platforms’ Entitlement to UGCs
An Intermediary-oriented Approach

procedural and substantive grounds respectively, including the effectiveness of notice and
consent, the capacity of platform users to enter into a contract, the readability of ToUs/ToSs,
the scope of the copyright licence, the proposed remuneration scheme for UGC creators and
the dispute resolution mechanism. Although some UGCs contain personal data giving rise to
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privacy concerns, this thesis focuses on copyright issues. Privacy protection for UGCs with
personal information is covered by the privacy policies of UGC platforms and the General
Data Protection Regulation (GDPR) which was passed by the EU but applies to both EU and
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non-EU entities.
6.2 UGC Platforms’ Entitlement to UGCs

In addition to being exempt from making large scale physical copies, one of the primary
differences between UGC platforms and traditional copyright producers is that UGC
platforms do not acquire copyright to the UGCs. However, the extent of UGC platforms’
exploitation of UGCs is no less than that of traditional producers’ exploitation of works.
UGC platforms gain entitlement to UGCs through ToUs/ToSs which are binding contracts
for users who use the services provided by UGC platforms. This section explores the
copyrightability of UGCs and how UGC platforms exploit UGCs through ToUs/ToSs.
6.2.1 Copyrightability and authorship of UGCs

It has been universally acknowledged that copyright protects expression rather than
idea. More specifically, copyright protects original expression. Some jurisdictions, mostly
common law countries, have imposed an additional requirement that the original expression
should be fixed to enjoy copyright protection. For instance, the UK and Hong Kong
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require literary, dramatic or musical works to be recorded ‘in writing or otherwise’. The
US law explicitly restricts copyright protection to works ‘fixed in any tangible medium
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of expression’. Other countries, mostly with civil law systems, (including continental
European and Asian nations), do not treat fixation as a prerequisite for copyright protection.
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13 According to the General Data Protection Regulation (EU) 2016/679 (GDPR) According to GDPR, art 4 (1), personal data
refers to ‘any information relating to an identified or identifiable natural person; an identifiable natural person is one who
can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number,
location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic,
cultural or social identity of that natural person’.
14 The GDPR applies to both organisations operating within the EU no matter where the data processing takes place, as well as
organisations outside the EU that offer goods or services to individuals in the EU or monitor the individual’s behavior taking
place in EU (GDPR, art 3). GDPR provides right of access (art 15), right of rectification (art 16), right to eraser (art 17), right
to restrict processing (art 18), right to be notified (art 19), right of data portability (art 20) and right to object (art 21) for data
subject.
15 Copyright Ordinance in Hong Kong, sec 3(2), Copyright, Designs and Patents Act 1988, sec 4(2).
16 17 U.S.C. § 101.
17 Elizabeth Adeney, ‘Authorship and Fixation in Copyright Law: A Comparative Comment’ (2011) 35 Melbourne
University Law Review 677, 682.

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