Page 191 - 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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and promote UGCs. This criterion is derived from implied licence theory. As only a few
users read the terms (28.43% in my survey, but the percentage would be smaller in the real
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world), the scope of the licence should be the same as expected or implied by the UGC
creator. In this way, whether the UGC creator reads the ToU/ToS would not influence his or
her decision to join the ToU/ToS.
2) The scope of the licence
(1) The territorial scope
ToUs/ToSs embody a worldwide licence of UGCs, corresponding to the borderless
nature of the Internet. As UGCs can be distributed around the world, the licence to exploit
UGCs should also be worldwide.
(2) The breadth of rights
‘Breadth of rights’ refers to the categories of rights UGC platforms obtain from UGC
creators to use UGCs. Many UGC platforms choose to incorporate all rights under copyright
law into the licence, including the right to copy, distribute, publicly perform, publicly
display, make derivative works and make available online. Most debates have been prompted
by the derivative work right, because the other rights must be licenced for UGC platforms to
fulfil their function of promoting UGCs, whereas derivative works rights are not. Nor would
UGC creators expect to licence the right to prepare derivative works for UGC platforms.
In my survey, 69.58% of the participants did not want their content to be modified by UGC
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platforms. However, according to my empirical study of 30 UGC platforms, 80% of the
UGC platforms asked UGC creators to licence the right to adapt UGCs and to waive their
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moral right to UGCs. Only one UGC platform (ccMixter) allowed users to refuse to
grant the derivative work right to the platform by selecting a restrictive creative commons
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licence. Two platforms (Fanfiction, Bilibili) did not include the right to make derivative
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work in their ToUs. Three platforms (Tumblr, Dailymotion and Archive of Our Own)
limited the derivative work right to technical modifications and reformatting, which are
strictly necessary to the purpose of ‘adapt[ing] to the technical requirements of different
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networks or devices to improve accessibility’ of UGCs.
I argue that the derivative work right granted to UGC platforms should be restricted

152 Hetcher, ‘User-Generated Content and the Future of Copyright’ (n 57) 832. Steven Hetcher also considers implied license as
the theoretical ground for the scope of the license contained in ToUs/ToSs.
153 See supra note 67.
154 Questions 15 and 29 in Appendix 1. The percentage of participants who do not wish their content to be modified: (175+40)/
(265+44)=69.58%.
155 Except for ccMixter, Fanfiction, Bilibili, Tumblr, Dailymotion and Archive of Our Own.
156 Terms of Use in ccMixter (n 139) art 4.
157 Terms of Service in Fanfiction, art 6 <https://www.fanfiction.net/tos/> accessed 19 May 2019; Terms of Service in Bilibili, art
3.2 <https://www.bilibili.com/protocal/licence.html> accessed 19 May 2019.
158 Terms of Service in Tumblr (Last Modified: 2018-05-15), art 6 <https://www.tumblr.com/policy/en/terms-of-service>
accessed 19 May 2019; Terms of Use in Dailymotion (n 139) sec 3.1; Terms of Service in Archive of Our Own (n 106) art I.
G.1.

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