Page 194 - 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

either another UGC platform with different services or other online intermediaries, might
void the contract for lack of consideration. Therefore, I suggest that UGC platforms should
be prohibited from incorporating the right to assign the licence into their ToUs/ToSs. Instead,
they should negotiate with the UGC creators about assigning the licence to a third party.
3) The period of the licence
I found six variations related to the period of the licence: perpetual, non-perpetual,
revocable, irrevocable, terminable and non-terminable. Of the 30 UGC platforms I
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studied, only one (Kwai) explicitly allowed users to revoke the licence, and eight platforms
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allowed the UGC creator to terminate the licence granted to the platform. Alternatively,
six platforms (Asianfanfics, Overclocked, Craigslist, MySpace, YouTube and SoundCloud)
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described the licence as perpetual, and five (Asianfanfics, Craigslist, Zhihu, YouTube and
SoundCloud) made the licence irrevocable. Of the seven UGC platforms with perpetual or
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irrevocable licences, two (Asianfanfics and MySpace) allowed UGC creators to terminate
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the agreement by discontinuing their use of and access to the platform or removing their
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UGCs from the platform. The other five remained silent or argued to the contrary. As the
consideration for a licence is the services provided by the UGC platform, a licence should
last until the UGC platform ceases to provide services to the UGC creator. Given that UGC
creators can remove their UGCs from the platform and stop using the UGC platform’s
services, they should expect their licence with the UGC platform to be terminable.
Judicial decisions have been split on the issue of whether a perpetual or irrevocable
licence can be terminated. Some courts have regarded a perpetual licence as essentially an
easement that cannot be terminated notwithstanding the licensee’s material breach of the
licensing agreement. Others have held that a perpetual licence can be terminated upon a
170
164 Fiesler and Bruckman found similar variations. Fiesler and Bruckman (n 137) 2554.
165 UGC platforms that allow users’ termination of license (Asianfanfics, MySpace, Tumblr, flickr, FB, printerest, Youtube,
SoundCloud). Though Wordpress allows a user to terminate the terms of use, Wordpress claims that the license of UGCs will
survive such termination.
166 YouTube and SoundCloud distinguishes two types of license. The license with respect to ‘audio Content, and any images or
text’(SoundCloud) and ‘video content’ (youtube) can be terminated automatically when you remove the content (SoundCloud)
or ‘within a commercially reasonable time after you removal’ (Youtube). On the other hand, license in regard of ‘user
comment or other contributions that you make on the Platform’ will be perpetual and irrevocable.
167 Perpetual and irrevocable: Asianfanfics, craigslist, Youtube, SoundCloud; perpetual: overclocked remix, myspace;
irrevocable: zhihu. YouTube and SoundCloud distinguishes two types of license. The license with respect to ‘audio Content,
and any images or text’(SounCloud) and ‘video content’ (youtube) can be terminated automatically when you remove the
content (SoundCloud) or ‘within a commercially reasonable time after you removal’ (Youtube). On the other hand, license in
regard of ‘user comment or other contributions that you make on the Platform’ will be perpetual and irrevocable.
168 Terms of Use in Asianfanfics (n 159) art 21.
169 Terms of Use Agreement in MySpace (n 106) art 2.
170 Nano-Proprietary Inc. v. Canon, Inc., 537 F.3d 394, 400 (5th Cir., 2008); Timeline, Inc. v. Proclarity Corp., No. C05-
1013JLR, at *30 (W.D. Wash., May 29, 2007); Change Healthcare Operations, LLC v. WebMD Health Corp. No.:
651775/2017, at *5 (N.Y. Sup. Ct. 2017) (The Supreme Court in New York also irritated in a recent case that the term
‘perpetual’ will ‘override the presumption that it may be revoked by intentional act (e.g., revocation), occurrence (e.g.,
material breach), or mere passage of time (e.g., expiration)’.)

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