Page 192 - 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

to changes in format for the sole purpose of enhancing the works’ exposure on other
platforms and other media, which is also why UGC creators submit their content to UGC
platforms. This restriction will not substantially harm UGC platforms’ incentives in hosting
and promoting UGCs because most UGCs only have marginal value with no necessity to
exploit the derivative market. This restriction can narrow the gap between start-up UGC
platforms and established UGC platforms, because in most cases only established platforms
have the capacity to develop the derivative market for UGCs. Therefore, established
platforms benefitted more from the overbroad license of UGCs than small UGC platforms.
The proposed restriction, which requires UGC platforms to voluntarily seek license of the
derivative works right from UGC creators, has much more effects on established platforms
than on small ones.
(3) The depth of exploitation
Apart from the breath of the licence, the depth of the licence is another dimension
defining the scope of ToUs/ToSs. The depth of a licence is the extent to which UGC
platforms can exploit UGCs pursuant to ToUs/ToSs.
Some UGC platforms are ambitious, stating something to the effect of ‘by submitting
your content, you grant the [UGC platform]…a licence to…exploit your content…for
any and all purposes, including entertainment, news, advertising, promotional, marketing,
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publicity, trade or commercial purposes’ which are ‘in connection with’ the UGC
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platform’s (and its successors’ and affiliates’) service and business. Others are more
modest, restricting the exploitation of UGCs to cases that are ‘solely for the purpose of
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displaying, distributing and promoting your [content]’. I favour the modest approach. UGC
platforms’ exploitation of UGCs should be clearly restricted to displaying and promoting
UGCs.
(4) Sublicensability and assignability
All ToUs/ToSs require UGC creators to grant a non-exclusive and sublicensable
licence to the UGC platforms. Although it is not common for non-exclusive licences to be
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sublicenced, in general, allowing UGC platforms to sublicence UGCs generates more
benefits than burdens for UGC creators. Granted, sublicencing would probably undermine
the economic incentives of the licensor (the UGC creator) because a putative user could
choose to seek a licence from the licensee (the UGC platform) rather than directly from
the licensor (the UGC creator). Sublicencing could also trigger the UGC creators’ burden
to monitor sublicenced use and collect royalties. Nevertheless, allowing UGC platforms
to sublicence to others without seeking the UGC creators’ ex-ante consent for every

159 Terms of Use in AsianFanfics, art 9 <https://www.asianfanfics.com/page/rules> accessed 19 May 2019.
160 Terms of Service in YouTube (n 53) art 6C.
161 Terms of Service in WordPress, art 7.a. <https://zh-cn.wordpress.com/tos/> accessed 19 May 2019.
162 ‘Be Contract Smart: 13 Copyright Terms to Know’ < https://www.freelancewritinggigs.com/copyright-terms-facts/> accessed
19 May 2019.

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