Page 19 - 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 1 Introduction
An Intermediary-oriented Approach

has become blurred and the legal framework governing the web scraping of UGC is in
flux. This has resulted in limited remedies for UGC platforms when confronted with the
misappropriation of UGC databases, usually by competitive platforms.
25
Copyright law has been deemed the son of technology. Nevertheless, the preceding
discussion shows that the current copyright regime has not adapted well to the wave of UGC
26
creation. To prevent technology’s child from turning against its mother, the copyright rules
for UGCs should be reframed.

1.2 Literature Review

1.2.1 The role and liability of UGC platforms

Online service providers have traditionally been viewed as passive conduits of
information. Nevertheless, as UGC platforms have begun to play an increasingly significant
role in promoting UGCs, more scholars have tended to treat them as gate-keepers and
27
intermediaries in the UGC age, rather than as passive hosts of UGCs. This has been
endorsed by the recently passed EU Copyright Directive in the Digital Single Market (DSM
28
Directive).
The shift from disintermediation to re-intermediation is the key to the prosperity of the

UGC industry. Ori Brafman and Rod A Beckstrom trenchantly pointed out in their book
The Starfish and the Spider that only an intermediate, centralised organisation can make
29
30
big profits. They compared a disintermediate, decentralised organisation to a starfish. A
starfish’s intelligence system is spread throughout its limbs, each of which has total flexibility
and independence when the starfish is moving. However, this structure disallows different
31
resources from coordinating with each other, thereby hindering the organisation from
maximising its profits. The centralised organisation, in contrast, works like a spider with a
32

25 Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stanford University Press 2003) 21.
26 Terri Branstetter Cohen, ‘Anti-Circumvention: Has Technology's Child Turned against Its Mother’ (2003) 36 Vanderbilt
Journal of Transnational Law 961.
27 Jon M Garon, ‘Reintermediation’ (2008) 2 International Journal of Private Law 227, 227 Michael Carroll, ‘Creative
Commons and the New Intermediaries’ (2006) 2006 Michigan State Law Review 45; Daniel Gervais, ‘Challenges in
Intellectual Property Governance: Providing the Right Incentives in the Quest for Global Innovation’’ (2012) 4 Trade Law
and Development 385, 397; Niva Elkin-Koren, ‘It’s all about control: Rethinking copyright in the new information landscape’
in Niva Elkin-Koren and Neil W. Netanel (eds), The Commodification of Information (The Hague: Kluwer 2002) 79.
28 DSM directive requires UGC platform to both seek license from the pre-existing copyright works, and to take effective and
appropriate mechanisms to prevent infringement. (DSM Directive, art 17).
29 Ori Brafman and Rod A Beckstrom, The Starfish and the Spider: The Unstoppable Power of Leaderless Organizations
(Penguin 2006) 54.
30 Ibid 18.
31 Ibid.
32 Ibid 40.

• 5 •