Page 206 - 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 7 Platform Users’ Entitlement to UGCs: Human Use and Web Scraping
An Intermediary-oriented Approach

traffic to UGC platforms, the platforms are expected to pay more attention to users’ appeals,
and create fairer ToUs/ToSs to guide the exploitation of UGCs.
Nevertheless, considering the oligopolistic positions of UGC platforms, some
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minimum standards on the conscionability of ToU/ToS should be established to secure the
fair exploitation of UGCs. This dissertation proposes some statutory requirements on the
place of the hyperlink to ToU/ToS, the notification of material change of ToU/ToS, the age
limitation to enter into ToU/ToS, the readability of ToU/ToS, the scope of license to use
UGCs, the user-friendliness of dispute resolution clause. These requirements can apply
basic contract law theories to the context of UGC, secure UGC creators’ legitimate interests
without causing substantial burden to UGC platforms, and thereby should be applied to
ToUs/ToSs in all types of UGC platforms, just as the conscionability requirements of
contract law apply to all types of contracts. This thesis also suggests a statutory remuneration
scheme for UGC platforms to remunerate UGC creators, but UGC platforms whose value
has not been substantially enhanced by facilitating UGC creation can be exempted to avoid
deterring the incentives of start-up UGC platforms. The above statutory requirements set the
minimum threshold for the conscionability of ToUs/ToSs. UGC platforms are encouraged to
develop more user-friendly version of ToUs/ToSs according to the characters of their own
business.
UGC platforms should be liable for unconscionable ToUs/ToSs. Under traditional
contract law, the unconscionability of a contract is merely a defence to breach of contract.
Nevertheless, since UGC platforms have different kinds of self-help remedies such as closing
the users’ account and deleting the infringing content, which are far more efficient than the
legal remedies, UGC platforms rarely bring breach of contract claims against infringing
users. Thus, under traditional contract law, as a practical matter, users have no opportunity
to claim the unconscionability of ToUs/ToSs. Though consumer protection law could be a
solution, its impact is indirect. As the ToU/ToS applies to all users on the platform rather than
to one particular challenger, it is reasonable and feasible to introduce the unconscionability
of a ToU/ToS as a new statutory cause of action. A cause of action for conscionability would
not only save future users the cost of litigation against the platform, but would also realise
the comparative advantage of litigation over arbitration: positive externality. The decision of
the conscionability of one UGC platform’s ToU/ToS would provide guidance to other UGC
platforms and future courts.

239 See supra note 151.

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