Page 21 - 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 1 Introduction
An Intermediary-oriented Approach

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of musical compositions embodied in sound recordings. However, it does not cover online
platforms that merely provide hosting services and it does not apply to sound recordings.

1.2.2 The legal status of UGC creation

To date, only the Canadian Copyright Law has provided an exception for the general
category of user-generated-content. The UGC exception clause introduced in 2014 allows
‘an individual to use an existing work or other subject-matter or copy of one, which has been
published or otherwise made available to the public, in the creation of a new work or other
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subject-matter in which copyright subsists’. The essential conditions for the exception
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are that the use is ‘solely for non-commercial purposes’, and the use ‘does not have a
substantial adverse effect … on the exploitation or potential exploitation of the existing
work’. Nevertheless, this rule has engendered furious criticisms, one of which relates to the
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value gap between the profits made by the UGC platforms and the copyright owners of the
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pre-existing works. Although individual users are required to use the pre-existing works to
create UGCs solely for non-commercial purposes, UGC platforms have often used UGCs for
commercial purposes, without compensating the copyright owners of the existing works.
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Other jurisdictions, such as the UK, Australia and Hong Kong, have refused to
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extend the existing copyright exemption to a general category of UGC. The DSM Directive
provides an exemption for UGCs for specific purposes: quotations, criticism, review,
caricatures, parodies or pastiche. However, because the Copyright Directive passed by the
51

43 Copyright Alliance, ‘Summary of H.R. 1551, The Music Modernization Act (MMA)’ <https://copyrightalliance.org/wp-
content/uploads/2018/10/CA-MMA-2018-senate-summary_CLEAN.pdf> accessed 11 June 2019.
44 Copyright Act (R.S.C., 1985, c. C-42), section 29.21(1).
45 Copyright Act (R.S.C., 1985, c. C-42), section 29.21(1)(a).
46 Copyright Act (R.S.C., 1985, c. C-42), section 29.21(1)(d).
47 Paul Daly, ‘Courts and Copyright: Some Thoughts on Standard of Review’ in Michael Geist (ed), The Copyright Pentalogy:
How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (University of Ottawa Press 2013)
442.
48 GOV.UK, ‘Guidance: Exceptions to Copyright’ (12 June 2014) <https://www.gov.uk/guidance/exceptions-to-copyright>
accessed 15 May 2019. See also Gowers Review of Intellectual Property (December 2006); Ian Hargreaves, Digital
Opportunity: A Review of Intellectual Property and Growth (May 2011); HM Government, Government Policy Statement:
Consultation on Modernising Copyright (2011).
49 Australian Government, Australian Law Reform Commission, ‘10. Transformative Use and Quotation: A Stand-Alone
Transformative Use Exception’ <https://www.alrc.gov.au/publications/10-transformative-use-and-quotation/stand-alone-
transformative-use-exception> accessed 10 April 2019. Sabine Jacques, The Parody Exception in Copyright Law (Oxford
University Press 2019) 108.
50 Bills Committee on the Copyright (Amendment) Bill 2014: User-Generated Content, LC Paper No. CB(4)100/14-15(01),
<https://www.legco.gov.hk/yr13-14/english/bc/bc106/papers/bc1061104cb4-100-1-e.pdf> accessed 15 May 2019. Intellectual
Property Department, the Government of Hong Kong Special Administrative Region, ‘Copyright (Amendment) Bill 2014
Frequently Asked Questions’ <https://www.ipd.gov.hk/eng/intellectual_property/copyright/Q_A_2014.htm#q7> accessed 15
May 2019 (‘Q7: Why does the Government not introduce a copyright exception for “User Generated Content” (UGC)?’)
51 DSM Directive, article 17.7.

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