Page 187 - 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

terms or underestimating the UGC licence fees, due to their lack of experience or maturity.
Nonetheless, in the case of ToUs/ToSs, most UGCs have little value and UGC platforms
merely gain non-exclusive licences from the UGC creators. Accordingly, damages, if any,
would be nominal. If a UGC is valuable, the UGC creator or his/her parent can exploit it
elsewhere. Based on my suggestion in Section 6.4.1, if a user is unsatisfied with the terms,
he or she can terminate the licence at any time. Further, UGC platforms make remarkable
contributions to the promotion of UGCs, benefitting UGC creators. Therefore, allowing a
minor to enter into a ToU/ToS with a UGC platform would not raise much concern over the
UGC platform’s unfair exploitation of the minor.
Under civil law systems, a contract entered into by a minor under 18 but over a certain
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134
age (7 in Germany and 8 in China ) is valid provided that (i) the minor’s guardian has
delivered consent, or (ii) the contract ‘is compatible with his/her age and intelligence’.
According to the above analysis about ‘necessaries’, the ToU/ToS can be placed into the
second category. However, a minor under a certain age (7 in Germany or 8 in China) is
treated as a person incapable to engage in civil conduct such as signing contracts, regardless
of the subject matter or consent of the guardian.
Due to the various age thresholds in different countries, a UGC platform could establish
an age limitation based on the relevant laws of the nation where it is based, and warn users
to obey the law of their own country. In this view, UGC platforms founded in the US and EU
that have refused to provide services for minors under 13 or 16 accord with both the privacy
protection policy and the validity of contracts. However, many Chinese UGC platforms,
though correctly requiring minors under 18 to obtain consent from their guardians, should
incorporate provisions into their ToUs/ToSs stating that they decline to provide services to
children under the age of 8.

6.3.4 The readability of ToUs/ToSs

The capacity requirement for the validity of contracts presumes that only a person over
a certain age has enough knowledge and experience to understand the terms and conditions
of the offer. Nevertheless, ToUs/ToSs have been notorious for complicated and obscure legal
jargon, which is difficult to comprehend even for adults. For example, YouTube’s ToU state
as follows:

By submitting Content to YouTube, you hereby grant YouTube a

134 German Civil Law, art. 104.
135 General Rules of the Civil Law of the People’s Republic of China, art 19 &20. (Art 19 ‘A minor attaining the age of eight
is a person with limited capacity for civil conduct, who shall be represented by his or her statutory agent in performing
juridical acts or whose performance of juridical acts shall be consented to or ratified by his or her statutory agent, but may
alone perform juridical acts which purely benefit the minor or are commensurate with his or her age and intelligence’. Art 20
‘A minor under the age of eight is a person without capacity for civil conduct, who shall be represented in performing civil
juridical acts by his or her statutory agent’.)

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