Page 176 - 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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cater to niche users, not the mainstream market. Given the enormous number of UGCs
uploaded every second, UGCs are highly time-sensitive and are likely to lose popularity in
a very short time. The benefits from exclusive exploitation are fleeting and last only briefly,
which would hardly cover the assuming liability for copyright infringement.
In terms of fairness, the service provided by UGC platforms cannot justify the transfer
of copyright ownership of UGCs. The primary reason is that a UGC is created by the UGC
creator. UGC platforms only help with promotion and for this they substantially profit.
Traditional producers such as publishing press, record labels, and film studios have been
fiercely criticised for exploiting copyrighted works without fair remuneration to creators.
UGC platforms, as Nicholas Carr pointed out, are even more exploitative because UGC
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platforms usually do not need to pay UGC creators. Neither do the non-commercial UGC
levy schemes (including both the UGC access levy proposed in Chapter 4 and UGC creation
levy in Chapter 5) justify UGC platforms’ copyright ownership of UGCs. The levy schemes
merely cover the creation of user-derived-content for non-commercial use, but UGC
platforms exploit all types of UGCs primarily with commercial purposes.
Consequently, rather than obtaining copyright ownership of UGCs through assignment,
UGC platforms have developed a new business model: gaining the substantial right to exploit
UGCs through a copyright licence. The services UGC platforms provide in promoting
UGCs, and the non-commercial UGC levies UGC platforms paid to legalize UGC creation,
provide the basis for UGC platforms to exploit UGCs.
6.2.3 TOU/ToS as a contract between the UGC platform and the users

A UGC platform relies on its ToU/ToS to exploit UGCs hosted on the platform. For
instance, YouTube’s ToS states:
[F]or clarity, you retain all of your ownership rights in your Content. However, by
submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive,
royalty-free, sub-licensable and transferable licence to use, reproduce, distribute, prepare
derivative works of, display, publish, adapt, make available online or electronically transmit,
and perform the Content in connection with the Service and YouTube’s (and its successors’
and affiliates’) business, including without limitation for promoting and redistributing part
or all of the Service (and derivative works thereof) in any media formats and through any
media channels.
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A UGC platform’s exploitation of UGCs relies on the validity of the ToU/ToS, which is
a contract between the UGC platform and UGC creators. A valid contract generally contains
the following five elements: (i) the intention to create a legal relationship, (ii) the validity
of the offer, (iii) an expression of acceptance, (iv) consideration and (v) the capacity of the

51 OECD (n 46) 12.
52 See supra note 10.
53 Terms of Service in YouTube, art 6C <https://www.youtube.com/static?template=terms> accessed 19 May 2019.

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