Page 173 - 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

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that storage lasting for several minutes is sufficiently fixed. However, the Second Circuit
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Court of Appeals indicated that a work lasting for not more than 1.2 seconds is not ‘fixed’.
Although the minimum duration that constitutes fixation is still unclear, we can draw a line
according to the purpose of the duration requirement. Fixation must serve an evidentiary
purpose. As Aaron Perzanowski noted, fixing a work to an enduring embodiment defines the
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bounds of the copyright and clarifies questions of authorship and ownership. by clarifying
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questions of authorship and ownership. Hence, this thesis argues that in countries with
fixation requirements, the duration of UGCs should be long enough to provide evidence of
ownership in disputes over copyright infringement.
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2) Originality 30
Fixation is not a major barrier to the copyrightability of a UGC. As long as the UGC
exists for more than a transitory period, it meets the fixation standard. The condition that
crucially influences the copyrightability of a UGC is originality. As Friedrich Nietzsche
explained, originality is ‘something that is yet without a name, that is yet impossible
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to designate, even though it stares us in the face’. Neither the Berne Convention, the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement)
nor any other international treaties have provided a definition of originality. Daniel Gervais’
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research on 93 national copyright laws found only three countries (Bulgaria, Burkina Faso
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34
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and Malaysia ) with specific definition of originality.
This chapter does not engage in an extensive discussion of the originality standard in
different jurisdictions but argues that all jurisdictions require at least a modest degree of
creativity. Some scholars have ranked the originality standards of disparate jurisdictions from

25 MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993).
26 Cartoon Network LP v. CSC Holdings, Inc, 536 F.3d 121, 123-124, 127 (2d Cir. 2008).
27 Elizabeth White, ‘The Berne Convention's Flexible Fixation Requirement: A Problematic Provision for User-Generated
Content’ (2013) 13 Chicago Journal of International Law 685, 703.
28 Elizabeth White, ‘The Berne Convention's Flexible Fixation Requirement: A Problematic Provision for User-Generated
Content’ (2013) 13 Chicago Journal of International Law 685, 703.
29 Ibid 704.
30 Though user-copied-content might constitute fair use under the recontextualisation standard (See notes 20-31 in Chapter 4),
user-copied-content does not generate original expression and thus does not constitute a copyrighted work. Hence, Chapters 5
and 6 only address user-authored-content and user-derived-content.
31 Daniel J. Gervais, ‘Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law ’ (2002) 49
Journal of the Copyright Society of the USA 949, 949.
32 Law on Copyright and Neighboring Rights in Bulgaria (2011) additional provisions §4 (1) ‘Each copy of a work of fine art
signed personally by its author shall be considered an original.’
33 Law No. 032-99/AN of December 22, 1999, on the Protection of Literary and Artistic Property in Burkina Faso, Glossary
(2) ‘ ‘Original work’ means a work which, by its characteristic features and form, or by its form alone, allows its author to be
identified.’
34 Copyright Act 1987 in Malaysia (2006), sec 7 (2A) ‘A literary, musical or artistic work shall not be eligible for copyright
unless--(a) sufficient effort has been expended to make the work original in character’.
35 Gervais, ‘Feist Goes Global’ (n 31) note 149.

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