Page 189 - 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

summaries of ToUs/ToSs. For example, Quora provides concise sentences such as ‘You own
the content that you post’ and ‘You agree to follow the rules of our platform’ in bold type
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as the first sentence of every paragraph. Wikipedia provides a 283-word summary of its
142
ToU consisting of six short sentences written in plain language. UGC platforms could also
borrow from the ‘human-readable’ versions of Creative Commons licences. For instance,
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attribution 4.0 International (CC BY 4.0) is summarised as follows:

You are free to: Share—copy and redistribute the material in any
medium or format, and Adapt—remix, transform, and build upon
the material for any purpose, even commercially. Meanwhile, you are
under the following terms: Attribution—You must give appropriate
credit, provide a link to the licence, and indicate if changes were made.
You may do so in any reasonable manner, but not in any way that
suggests the licensor endorses you or your use. No additional restrictions
—You may not apply legal terms or technological measures that legally
restrict others from doing anything the licence permits. 144

6.3.5 The form of ToUs/ToSs

Steven Hetcher argued that ToUs/ToSs are unconscionable because the transfer of
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copyright should be in writing. This thesis does not hold that the unwritten form of ToUs/
ToSs necessarily transforms ToUs/ToSs into something unconscionable.
One apparent reason is that UGC platforms merely obtain non-exclusive licences to use
UGCs, rather than copyright ownership of UGCs from UGC creators. Non-exclusive licences
are not required to be in writing. Further, the reason for requiring a writing contract is to
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encourage the parties to be more prudent and to serve the evidentiary function in cases of
controversy. Accordingly, writing mainly applies to circumstances in which the legislators
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are presumed to have vital interests. The presumption that the transfer or licensing of
copyright involves significant interests worked in the pre-Internet age because the production
and distribution of copyrighted work via analog technology entailed enormous costs.

141 Terms of Use in Quora (n 106).
142 Terms of Use in Wikipedia (n 106).
143 Yahong Li and Graham Greenleaf, ‘China's Copyright Public Domain: A Comparison with Australia’ (2017) 27(3) Australian
Intellectual Property Journal 147, 158. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2980316> accessed 14 July
2019.
144 Attribution 4.0 International (CC BY 4.0) (Creative Commons) <https://creativecommons.org/licenses/by/4.0/deed.ast>
accessed 14 July 2019.
145 Hetcher, ‘User-Generated Content and the Future of Copyright’ (n 59) 840.
146 17 U.S.C. Sec. 204(a).
147 Lon L. Fuller, ‘Consideration and Form’ (1941) 41 Columbia Law Review 799, 800.

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