Page 201 - 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

number of UGC creators, especially those who want to make a career of creating content
but have not sought financial or marketing support from professional intermediaries, have
been attracted to peer-to-peer networks and the commercialisation opportunities offered by
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UGC platforms. According to my online survey, although only 3.56% of the UGC creators
viewed earning profits as the most important driver of UGC creation, 43.04% were unhappy
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about UGC platforms’ exploitation of their UGCs without remuneration. Considering
the profits UGC platforms have made from UGCs and the wide availability of electronic
payment, it is fair and feasible to remunerate UGC creators, just as traditional creators were
paid by producers such as the publishing houses, record labels and the film studios in the
pre-Internet age.
The traditional way a royalty worked was to pay money in exchange for a manuscript.
However, because the services UGC platforms provide are already the consideration for the
licence, and more importantly, because UGC creations and uploads are totally voluntary
and have no royalties, requiring UGC platforms to pay UGC creators before the UGCs are
uploaded would stifle the creators’ incentive to upload content. Considering the marginal
value that individual UGCs contribute and the unlimited numbers of UGCs uploaded every
second, I suggest that an ex-post remuneration scheme rather than an ex-ante royalty system
is a more appropriate way to reward UGC creators.
Some UGC platforms appear to have already thought about distinguishing royalties
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from remuneration. For example, some UGC platforms in my dataset (e.g. Asianfanfics,
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Twitter and MySpace ), have additionally included a payment provision in their ToUs/
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ToSs, apart from the term ‘royalty-free’. Some UGC platforms have put the remuneration
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217
idea into practice, despite the unchanged word ‘royalty-free’ in their ToUs/ToSs. A
211 Li and Huang (n 151) 89, note 167; Gervais, ‘Authors, Online’ (n 66) 391.
212 Questions 12 and 26 in Appendix 1. The percentage of UGC creators considering economic incentive as the most important
driver is 3.56% ((7+4)/(265+44)=3.56%, Q12 and Q26). Questions 14 and 28 in Appendix 1. The percentage of UGC creators
unhappy about UGC platforms’ unpaid exploitation of UGCs is 43.04% ((107+26)/(265+44)=43.04%).
213 Terms of Service in AsianFanfics (n 159) art 9. ‘You grant to ASIANFANFICS a non-exclusive, fully-paid, royalty-free …
license’ ‘without the requirement of any permission from or payment to you or to any other person or entity’.
214 Terms of Service in Twitter, art 3 <https://twitter.com/en/tos#update> accessed 19 May 2019. ‘Such additional uses by
Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the
Content that you submit, post, transmit or otherwise make available through the Services’.
215 Terms of Use Agreement in MySpace (n 106) art 6.2. ‘You understand that you will not receive any fees, sums, consideration,
or remuneration for any of the rights granted in this Section 6’.
216 Terms of Service in AsianFanfics (n 159) art 9. ‘You grant to ASIANFANFICS a non-exclusive, fully-paid, royalty-free …
license’ ‘without the requirement of any permission from or payment to you or to any other person or entity’.
217 See eg, Wei Wei Liu, ‘TripAdvisor: A Pioneer in Monetizing User-Generated Content’ (Challenge, 7 March 2015) <https://
www.hbs.edu/openforum/openforum.hbs.org/goto/challenge/understand-digital-transformation-of-business/tripadvisor-a-
pioneer-in-monetizing-user-generated-content.html> accessed 19 May 2019; ‘Vimeo: Make More Money from Your Videos
by Selling Directly to Your Fans’ (Viemo) <https://vimeo.com/ondemand/startselling> accessed 19 May 2019; Lzbsem, ‘Xiao
Hong Shu: The Way to UGCs Commercialization’ (The World of a Business Cat, 27 August 2018) <http://www.lzbsem.com/
operate/5471.html> accessed 19 May 2019.

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