Page 193 - 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

transaction would be both efficient and helpful because it draws on the UGC platforms’
informational advantages and experience with promoting UGCs. This is similar to the way
traditional producers such as publishers, record labels and film studios promoted copyrighted
works. Due to the marginal value of most UGCs, the sublicence royalties for individual
UGCs would possibly be insignificant. After all, UGC creators grant licences to the UGC
platform free of charge. I design a remuneration scheme to make up for UGC creators’ loss
of sublicencing opportunities, which is discussed in Section 6.4.2. The suggestions for a
platform user’s use of UGCs (proposed in Section 7.2.3) also allow certain UGC creators to
terminate the sublicence by the UGC platform and require the user to seek a licence directly
from the UGC creators.
Due to UGC platforms’ comparative advantages in promoting UGCs and UGC creators’
moderate loss resulting from UGC platforms’ sublicencing, it is fair to conclude that UGC
creators would implicitly agree to UGC platforms’ sublicence. This would render court
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intervention unnecessary. To secure the UGC creators’ interests, I suggest some conditions
a UGC platform should obey with respect to the sublicencing right. First, UGC creators
should receive adequate notice of the sublicence. If the UGC creator does not want his/
her UGC to be used by a third party, the UGC creator could terminate the sublicence by
sending notice to both the UGC platform and the third party and demand that the third party
remove the UGC. A UGC creator who wants the third party to seek a licence directly from
himself/herself rather than from the UGC platform could also terminate the UGC platform’s
sublicence (this is discussed in Section 7.2.3). Second, if the UGC platform learns that the
sublicencee has breached the sublicence agreement or infringed the copyright of the UGC,
the UGC platform should notify the UGC creator who would have the right to terminate the
sublicence. Third, the UGC platform would have a duty to abide by the remuneration rule
proposed in Section 6.4.2.
Another characteristic of the licence set forth in ToUs/ToSs is that UGC platforms are
allowed to assign the licences from UGC creators to a third party. Assigning the licences has
been even more controversial than sublicencing because, in the case of a sublicence, UGC
creators still enjoy the services provided by the UGC platform they have chosen. After an
assignment, the services provided by the third party might not meet the expectations of the
UGC creators. A UGC creator uploads UGCs to a specific UGC platform because of the
services provided by the platform, such as social networking. This is the consideration for
the copyright licence granted to the UGC platform. Assigning the contract to a third party,

163 Consent is the most important element for a license, either an exclusive or a non-exclusive license, to be sublicensable.
United States v. Timken Roller Bearing Co., 83 F. Supp. 284, 309 (N.D. Ohio 1949) indicated that neither party could
sublicence the know-how without the consent of the other in this case. See also United States v. Imperial Chem. Indus.,
Ltd., 100 F. Supp. 504, 540 (S.D.N.Y. 1951), in which an exclusive licensee could not sublicence in his territory without
the consent of his licensor. The Ninth Circuit also determined that a non-exclusive copyright license cannot be transferred
without the consent of the licensor. Brandon M. Villery, ‘The Transferability of Non-Exclusive Copyright Licenses: A New
Default Rule for Software in the Ninth Circuit’ (1999) 22 Hastings Communications and Entertainment Law Journal 153,
155.

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