Page 174 - 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

the highest to the lowest: the continental European interpretation of the author’s personality,
the US standard of a ‘minimal degree of creativity’, the Canadian standard of the non-
mechanical and non-trivial exercise of skill and judgement, and the UK’s ‘skill and labour’
36
standard. Under the continental-European copyright system, protecting a work is regarded
as an extension of the protection of an author’s personality. As the EU Court of Justice
found, a work should involve ‘free and creative choices’ or a ‘personal touch’ to establish
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originality. The US Supreme Court rejected the ‘sweat of the brow’ criterion in the seminal
Feist case and required ‘at least some minimal degree of creativity’. The Canadian Supreme
38
Court proposed a standard of ‘skill and judgment’ for copyrighted work and acknowledged
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that a specific format of law reports published by a proprietary entity was copyrightable.
The UK courts have treated the author’s labour rather than the creativity embodied in the
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content, as the basis of copyright protection. Nevertheless, in recent years common law
countries have raised their creativity requirements. For example, in Tele-Direct v. American

41
42
Business Info. in Canada, Interlego A.G. v. Tyco in the UK, and lceTV v. Nine Network in
43
Australia the courts held that creativity is a constitutional requirement for an original work
of authorship. 44
UGCs should apply the same originality criteria that apply to traditional copyrighted
works because both UGCs and copyrighted works are subject to copyright law. They only
differ by the identity of authors: UGCs are created by amateurs and copyrighted works are
45
usually created by professionals. However, when determining the copyrightability of a
work, basing it on the identity of the author makes no sense. This was acknowledged in the

36 Maarten Truyens and Patrick Van Eecke, ‘Legal Aspects of Text Mining’ (2014) 30 Computer Law & Security Review 153,
156.
37 Infopaq v Danske Dagblades Forening, C-5/08, 16 July 2009 (‘Infopaq I’) para 20; Bezpečnostní softwarová asociace v
Ministerstvo Kultury, C-393/09, 22 December 2010, para 12; Premier League, joint cases C-403/08 and C-429/08, 4 October
2011, para 8; Eva-Maria Painer v Standard VerlagsGmbH e.a., C-145/10, 1 December 2011; Infopaq v Danske Dagblades
Forening, C-302/10, 17 January 2010 (‘Infopaq II’), para 10; Football Dataco v Yahoo!, C-604/10, 1 March 2012, para 18.
38 Feist Publications, Inc., v Rural Telephone Service Co., 499 U.S. 340, 345 (1991) Nevertheless, Jane Ginsburg claims
that US copyright law both low-authorship and high-authorship through different rules. Jane C Ginsburg, ‘Creation and
Commercial Value: Copyright Protection of Works of Information’ (1990) 90 Columbia Law Review 1865, 1870.
39 CCH Canadian Ltd. v. Law Soc'y of Upper Can., [2004] 1 S.C.R. 339 at 352, 2004 SCC 13 (Can.). Jacqueline D. Lipton,
‘Wikipedia and the European Union Database Directive’ (2009) 26 Santa Clara High Technology Law Jounal 631, 635.
40 Truyens and Eecke (n 36) note 30; London Press, Ltd v University Tutorial Press, Ltd., [1916] 2 Ch 601, para 11; Walter v.
Lane [1900] AC 539; Express Newspapers v News (UK) Ltd. [1990] 1 W.L.R. 1320, para 13 (Even the mere act of taking
down and recording a speech can result in a copyrighted work, due to the amount of work involved)
41 Tele-Direct (Publications) Inc. v. American Business Information, Inc., [1998] 2 FC 22, 1997 CanLII 6378 (FCA), para 24.
42 Interlego AG v Tyco Industries Inc [1989] AC 217, para 31.
43 IceTV Pty Ltd. v. Nine Network Austl. Pty Ltd. [2009] HCA 14, para 47. ‘A complex compilation or a narrative history
will almost certainly require considerable skill and labour, which involve both ‘industrious collection’ and ‘creativity’, in
the sense of requiring original productive thought to produce the expression, including selection and arrangement, of the
material’. <http://eresources.hcourt.gov.au/downloadPdf/2009/HCA/14> accessed 19 May 2019.
44 Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340, 349 (1991).
45 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (Penguin 2008) 26.

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