Page 175 - 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

OECD’s report requiring UGCs to reflect ‘a certain amount of creative effort’ and clarifying
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that ‘a minimum amount of creativity’ is sufficient. The Court of Justice of the European
Union (CJEU), in Eva-Maria Painer v Standard Verlags GmbH, acknowledged that portrait
photographs created by amateurs enjoy the same copyright protection as any professionally
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generated works. The Beijing Internet Court, in its first decision since its establishment, Tik
Tok v Baidu, also confirmed the copyrightability of user-generated short video on the ground
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that the short video met the originality standard.
To summarise, a UGC enjoys copyright protection as long as it meets the minimum
creativity standards and is fixed on ROM or a hard disk for a sufficient amount of time to
allow the UGC to fulfill the evidence function.
6.2.2 A non-exclusive licensee rather than a copyright owner

A defining character of UGC platforms is that they do not require UGC creators to
transfer their copyright to the platforms. In my study of 30 major UGC platforms, all but
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Dianping stated that UGC creators preserved copyright ownership of UGCs. Although
Dianping’s ToS requires users to assign their copyright ownership in UGCs to Dianping and
prohibits users from submitting UGCs to other platforms, this has been difficult to enforce.
Many users have continued to upload their UGCs to different competitive platforms because
every UGC platform provides a reward for UGC submission. The courts have also declined
to recognise Dianping’s copyright ownership of users’ content based on its ToS. 50
The reason why UGC platforms have refused to pursue copyright ownership of UGCs
pertains to both efficiency and fairness. In terms of efficiency, considering the massive scale
of UGC creation, it would be difficult to monitor whether UGC creators uploaded their
UGCs to other platforms. Further, being a copyright owner of UGCs suggests that the UGC
platform would be liable for copyright infringement generated by UGCs and would not
be shielded by the safe harbor doctrine. Moreover, UGC platforms gain little benefit from
copyright ownership of UGCs because UGCs are in a long tail market and most UGCs only

46 OECD, Participative Web and UCC: Web 2.0, Wikis and Social Networking (2007) 18.
47 Eva-Maria Painer v Standard Verlags GmbH (CJEU-C/145/10) para 25.
48 Sina Technology, ‘Douyin v. Baidu: Douyin’s Claim was Dismissed but the Copyrightability of Short Videos is Confirmed’ (26
December 2018) <https://tech.sina.com.cn/i/2018-12-26/doc-ihmutuee2786133.shtml> accessed 19 May 2019.
49 Terms of Service in Dianping, art VII.3 <http://www.dianping.com/help/center/rule?name=base5> accessed 20 June 2019;
Intellectual Property Statement in Dianping, <http://www.dianping.com/help/center/rule?name=base2> accessed 20 June
2019.
50 In 2010, Dianping launched an action against Aibang for anti-unfair competition and copyright infringement, with evidence
of Terms of Use which includes a clause that Dianping has exclusive copyright rights on all user-generated-content uploaded
to Dianping.com. Though Haidian District Court supported the copyright infringement claim, the court’s decision was
based more on the originality of the arrangement and selection of UGCs rather than on the copyright ownership term. ToU.
Dianping v. Aibang (2008) Hai Min Chu Zi No. 16204 Civil Judgement; Aibang appealed to Beijing No 1 Intermediate
People's Court, and the Court held that Dianping cannot gain copyright ownership to UGCs through Terms of Use. Aibang v.
Dianping (2009) Yi Min Zhong Zi No.5031 Civil Ruling.

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