Page 178 - 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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innovation, commercialization, creative anarchy, and rules. Any technological innovation
is explored by enthusiasts who have more interests in technology itself rather than in
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commercial profits. New technology soon attracts the attention of entreprenuers who ‘rush
onto the frontier to stake their claims’ on the new revenue stream, despite the lack of rules
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in dealing with the new technology. With the technology matures, some players start to
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demand order, and wish to control the dominate technology by raising the cost of entry.
The result is the establishment of new rules. This ‘innovation-commerciliasation-creative
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anarchy-rules’ cycle accords with the development of any technology in copyright law. With
the commercialization and re-intermediation of UGC platforms, we are in the third phase
where UGC platforms design their own rules (ToUs/ToSs) to unfairly exploit UGCs while
UGC creators are largely incapableal of bargaining with UGC platforms. A few disputes
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have already been brought by UGC creators, and more disputes are expected to emerge
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with more and more start-up artists wish to rely on UGC platforms to promote their works.
The conscionability standard of ToUs/ToSs can provide some guidance on the design of
the new rules for the fair exploition of UGCs. As can be demonstrated by the following
discussion, the proposed requirements can ensure the fair exploitation of UGCs without
placing substantial burden on UGC platforms, and can provide breathing space for start-up
platforms and encourage innovation.

6.3 The Procedural Conscionability of ToUs/ToSs

6.3.1 Notice of offer and assent

Many users do not read or are even unaware of ToUs/ToSs. In my survey, only 28.43%
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of the users had ever read ToUs/ToSs, even though they are highly-educated: over 48%
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held a Bachelor’s degree and over 22% had earned a post-graduate degree. In the real
world (where fewer people have a university education), the percentage of those reading
ToUs/ToSs would be substantially smaller. The users’ lack of knowledge of ToUs/ToSs can
be attributed to the display of ToUs/ToSs on the websites or apps, and the character of the

60 Debora Spar, Ruling the Waves: Cycles of Discovery, Chaos, and Wealth, from the Compass to the Internet (Harcourt, 2002)
10-11.
61 Ibid 10.
62 Ibid.
63 Ibid 12.
64 Ibid.
65 See supra note 11 and infra note 237.
66 Daniel Gervais, ‘Authors, Online’ (2015) 38 Columbia Journal of Law & the Arts 385, 391. This observation is also in line
with my interviews of UGC creators who wish to use UGC platforms to promote their works. (Appendix 10-15).
67 Questions 9 and 23 in Appendix 1. The percentage of the responders who have read ToU/ToS: (123+16)/(419+70)=28.43%.
68 Questions 3 and 17 in Appendix 1. The percentage of the responders holding a bachelor’s degree: (199+36)/(419+70)=48.06%.
The percentage of responders having a post-graduate degree: (87+24)/(419+70)=22.70%.

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