Page 205 - 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

also provides exceptions. Other requirements proposed in Section 6.3 and Section 6.4,
including placing the hyperlink to ToU/ToS in conspicuous locations, emailing platform
users about the material change of ToU/ToS, establishing an age limitation consistent with
the relevant national laws, adding human-readable versions of ToU/ToS, restricting the
scope of license to use UGCs within the scope that is necessary for the UGC platform to
store, share and promote UGCs, and designing a user-friendly dispute resolution clause,
should apply to all UGC platforms because these requirements do not bring substantial
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burden to UGC platforms and even provide more breathing space for start-up platforms.
Because remunerating UGC creators increases the operating costs of UGC platforms, and
because UGCs, especially user-authored-content, are still proliferating, I suggests only UGC
platforms whose value has been substantially enhanced by facilitating UGC creation should
adopt the remuneration scheme to remunerate UGC creators. UGC platforms whose value
has not been substantially enhanced by facilitating UGC creation can be exempted from the
UGC remuneration scheme. The criteria of ‘substantial value enhancement by facilitating
UGC creation’ can be set by copyright royalty judges or similar authorities, as the criteria
of ‘substantial value enhancement by facilitating UGC creation’ under the non-commercial
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UGC levy schemes discussed in previous chapters. Both the exemptions under the non-
commercial UGC levy scheme and the UGC remuneration scheme intend to strike a balance
between the interests of content creators and UGC platforms.

6.5 Conclusions: The Promise of Fair Exploitation through
Conscionable ToUs/ToSs

Recent years have witnessed the growing power of platform users, which has helped
them preserve the fairness and conscionability of ToUs/ToSs through extra legal means. For
example, Facebook and Instagram tried to revise their ToSs to gain more control over UGCs,
but were threatened by large numbers of users closing their accounts, so the platforms’
attempts eventually failed. Owing to platform users’ significant contribution of content and
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236 Section 5.4.1.2.1.
237 Section 5.5.1.
238 For example, Facebook revised its ToS in 2009 to allow Facebook to retain its user’s content and licenses even after the
user’s Facebook account was terminated. The blog Consumerist that firstly report this change received more than 300,000
views in a week, and many Facebook groups were created to oppose the changes. Facebook responded swiftly, clarifying
that ‘[w]e certainly did not — and did not intend — to create any new right or interest for Facebook in users’ data by issuing
the new terms’. Brian Stelter, ‘Facebook’s Users Ask Who Owns Information’ (The New York Times, 16 February 2009)
<https://www.nytimes.com/2009/02/17/technology/internet/17facebook.html> accessed 25 February 2019. Similarly, in
December 2012, Instagram introduced a revised ToS under which Instagram, and its owner Facebook, would be allowed to
sell user-uploaded-photos or related data to third parties. Users reacted immediately by deleting their Instagram accounts and
exploring other photo sharing social networks such as Flickr and Hipstamatic. To prevent an exodus of users, Instagram's
co-founder Kevin Systrom promised that Instagram has no intent to sell user photos. The new term merely existed for one
day. See Alexander Eichler, ‘Instagram Terms Of Service Change Sparks Revolt: ‘The Instascam’ Backlash As Told By The
Users’ (HuffPost, 12 December 2012) <https://www.huffpost.com/entry/instagram-terms-of-service-change_n_2333284>
accessed 20 May 2019; Amanda Holpuch, ‘Instagram Reassures Users Over Terms of Service after Massive Outcry’ (Support
the Guardian, 18 December 2012) <https://www.theguardian.com/technology/2012/dec/18/instagram-issues-statement-terms-
of-service> accessed 20 May 2019.

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