Page 185 - 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

clauses. In addition to displaying the notice of modification of ToU/ToS in a conspicuous
place on the homepage of the website, UGC platforms should also email registered users.
This would not be burdensome because UGC platforms have the capacity to quickly
access their database of registered email accounts and have already informed their users of
promotions and newsletters in this way. The revised ToU/ToS should take effect at least two
weeks after the notification.

6.3.3 The capacities of the parties

Another element that ensures the procedural conscionability of ToUs/ToSs is that users
must have the legal ability to enter into a contract. The most crucial factor is the age.
In my empirical study of over 30 major UGC platforms’ ToUs/ToSs, 80% (24 out of
30) of the ToUs/ToSs emphasised users’ age requirement by, for example, highlighting the
117
statement that ‘our service is not intended to provide to users under xx’, or requiring users
to disclose the year and month of their birth and disallowing users under the required age to
118
sign up. Most of the UGC platforms have set the minimum age to access the platform as
120
119
(i) 13 for users residing in the US, (ii) 16 for users in the European Union and (iii) 18
121
for users residing in China. Most US based and EU based UGC platforms have treated the
age requirement as an on-off switch: users over 13/16 years old have been allowed to engage
in any use, and users under 13/16 years old have been prohibited from using any service
provided, regardless of their guardians’ approval. A few UGC platforms have been more
flexible. For example, Archive of Our Own provides that ‘children under the age of thirteen
122
(13) are…not permitted to have an account or upload Content of any type to the Archive’.
However, this suggests that children under 13 years old can still make use of the platform
other than by registering for an account or uploading content. UGC platforms in China such
as WeChat have allowed users under 18 years old to enter into TOU as long as the user’s
parent or guardian has agreed to the terms. 123
In most jurisdictions, only those aged 18 or above are qualified to contract. Moving the
age limit to 13 and 16 is more likely about privacy protection than copyright. In the US, the
Children’s Online Privacy Protection Act of 1998 protects the online privacy and safety of
124
children under 13 and restricts the marketing of children’s personal data. The EU’s General
Data Protection Regulation prohibits the collection and use of personal data of a child

117 For example, Terms of Service in Archive of Our Own (n 106) art I.D.9.
118 See ToU/ToS in Tumblr, Deviant Art, YouTube, FaceBook and Flickr.
119 See ToU/ToS in YouTube, Fanfiction, Quora and ccMixer.
120 See ToU/ToS in Tumblr, Archive of Our Own and Twitter.
121 See ToU/ToS in WeChat, Tik Tok (Douyin) and Kwai (Kwai).
122 Terms of Service in Archive of Our Own (n 106) art I.D.9.
123 Terms of Service in WeChat <https://www.wechat.com/en/service_terms.html> accessed 19 May 2019.
124 Children's Online Privacy Protection Act of 1998.

• 171 •