Page 207 - 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

Chapter 7 Platform Users’ Entitlement to

UGCs: Human Use and Web Scraping

7.1 Introduction

Chapter 6 proposed some criteria to ensure the fairness of UGC platforms’ exploitation
of UGCs. Since UGCs are not only exploited by UGC platforms but also by platform
users, the current chapter explores the criteria for UGC platform users’ use of UGCs,
to strike a balance between the interests of UGC creators, UGC platforms and platform
users in exploiting UGCs. Under copyright law, any copying, distributing or making of a
derivative work of a copyrighted UGC without the consent of the UGC creator is a copyright
infringement unless it falls under the umbrella of fair use/fair dealing or other privileges. The
use of UGCs enjoys more safety valves than works that are not on UGC platforms because
the ToUs/ToSs of UGC platforms usually allow platform users to access and use UGCs
1
to some extent. Nevertheless, ToUs/ToSs only cover certain types of use, usually non-
commercial use by human users. Section 7.2 proposes some guidelines to govern the use that
is not addressed by ToUs/ToSs or statutory privileges. 2
In addition to the difference between non-commercial use and commercial-use by human
users, the difference between human use and use by web scraping tools is important. Web
scraping tools are ‘web crawlers, bots, scraping tools, data mining tools, bulk downloading
tools, wget utility or similar data gathering and extraction tools’. The process of gathering
3
and extracting data from websites is called web scraping, web harvesting, screen scraping,
web crawling or web data extraction. Compared with human browsing, web scraping is
4
5
characterised by speed. A human can only access one page at a time. In contrast, because
web scraping is automatically driven by machines, it can automatically extract an enormous
number of UGCs from many pages a thousand times faster than humans, with almost zero

1 Section 7.2.1.
2 The noncommercial UGC access levy scheme in Chapter 3 and the noncommercial UGC creation levy scheme in Chapter 4
are collectively named noncommercial UGCs levy schemes hereafter.
3 Terms of Service in Quora (23 October 2018), art 4d <https://www.quora.com/about/tos> accessed 19 May 2019; ToUs/ToSs
in AsianFanFics, YouTube, Dianping.com, IMDb, Craigslist, SoundCloud.
4 Alan Ross Mach. Corp. v. Machinio Corp., 2018 WL 3344364, at *5 (N.D. Ill. July 9, 2018).
5 Velotio Technologies, ‘Web Scraping: Introduction, Best Practices & Caveats’ (Medium, 11February 2019) <https://medium.
com/velotio-perspectives/web-scraping-introduction-best-practices-caveats-9cbf4acc8d0f> accessed 10 June 2019.

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