Page 196 - 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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or the licensee has paid high licensing fees or other consideration. However, because of the
marginal value individual UGC has for the UGC platform and the royalty-free nature of the
licence, UGC platforms have no grounds upon which to require UGC creators to enter into
perpetual and irrevocable licences.
Once the UGC creator has terminated a licence, all of the content uploaded under the
creator’s account should be deleted and thereafter become inaccessible to the UGC platform.
However, some UGC platforms have announced that for technical reasons, caching or
referencing the deleted UGC might still be ‘available’ for ‘a commercially reasonable period
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of time’. Despite the lack of a specific formula to calculate the length of the period, some
factors could be the size of the UGC and the UGC platform’s ability to host and profit from
the UGC. Many UGC platforms have claimed that they retain deleted UGCs for ‘backup,
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archival or audit purposes’, or ‘for legal and disaster recovery purposes’, such as
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responding to copyright infringement claims in which the UGC is alleged to have violated
‘the rights of third parties’. This provision could be held conscionable as long as the UGC
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platform’s retention of the UGC is strictly for the above purpose and the UGC platform does
not display, distribute, perform or otherwise make the deleted UGC visible to other users.
Currently, YouTube and SoundCloud distinguish the licence for user-generated video
or audio from the licence for user comments on others’ UGC. Under the ToSs of these two
platforms, the licences for ‘audio content, images or text’ (SoundCloud) and ‘video content’
(YouTube) terminate automatically upon the removal of the content (SoundCloud) or
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‘within a commercially reasonable time after your removal’ (YouTube). However, licences
pertaining to user’s comments or other contributions to the platform are perpetual and
irrevocable. As user comments can also be deleted by the user and deleting comments does
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not affect the existence of the content to which the users’ comments are attached, it would
appear to be unnecessary to make separate regulations for user comments and other UGCs.
Therefore, I suggest that non-perpetual, revocable and terminable requirements should apply
to all kinds of UGCs.

6.4.2 The dispute resolution clause

A dispute resolution clause is a material clause in a contract because it specifies how the
parties will resolve disputes. It is extremely important to UGC creators, who, pursuant to the

176 Ibid; Lee v. Lozier 945 P.2d 214, 219 (Wash. Ct. App. 1997).
177 e.g., Terms of Service in WordPress (n 161) art 12.
178 e.g., Terms of Service in Asianfanfics (n 159) art 21; Terms of Service in Tumblr (n 158) art 6.
179 e.g. Terms of Service in Archive of Our Own (n 106) art I.G.2
180 Terms of Use in Quora (n 106), art 3c(iii).
181 Terms of Use in SoundCloud (n 112) ‘Grant of license’; Terms of Service in YouTube (n53) art 6C.
182 Terms of Use in SoundCloud (n 112) ‘Licenses with respect to comments or other contributions that you make on the
Platform will be perpetual and irrevocable, and will continue notwithstanding any termination of your account.’; Terms of
Service in YouTube (n 53) ‘The above licenses granted by you in user comments you submit are perpetual and irrevocable’.

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