Page 212 - 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

for any purpose, even commercially’, as long as the user gives the appropriate credit to the
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creator and adopts the same CC BY-SA licence for the modified content. By connecting to
the CC licence, ToUs/ToSs provide platform users with a much more extensive right to use
UGCs than they would have had under copyright law.
Nevertheless, ToUs/ToSs cannot cover all uses. Many UGC platforms have tended to
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restrict the licence for platform users to non-commercial, personal use. However, use that
exceeds the scope of the ToU/ToS might still be protected if it falls under the umbrella of
statutory privileges.

7.2.2 Statutory privileges

The most well-known statutory privilege is the fair use or fair dealing rule. The fairness
factors mainly include (i) the purpose and character of the use, including whether such use
is of a commercial nature or is for non-profit educational purposes; (ii) the nature of the
copyrighted work; (iii) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or
value of the copyrighted work. This chapter does not provide an extended argument on the
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application of fair use/fair dealing, a theme that other scholars have canvassed quite ably.
What is noteworthy in the context of UGC is the second factor, ‘the nature of the
copyrighted work’. As UGCs involve significantly less cost to create and distribute than
traditional intermediary produced works (the works that legislators had in mind in construing
the fair use doctrine), factor two may favour the platform users (e.g. UGC users). Factor four
also sides with platform users because UGCs typically have a smaller market or value than
professional intermediary produced works.
A major difference between the fair use and fair dealing doctrines is that the fair dealing
doctrine requires the use not only to be fair according to the above factors but also to serve a
purpose identified by the statute such as research, review, criticism, parody, news reporting
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or teaching. Although the fair dealing doctrine covers some kinds of UGC creations such
as criticism and parody, it has not yet acknowledged the general concept of UGC creation.
Alternatively, the fair use rule does not impose any requirement on the purpose of the use. As

27 CreativeCommons, Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0) <https://creativecommons.org/licenses/by-sa/3.0/>
accessed 19 May 2019.
28 e.g., Terms of Service in Kwai, Part III.2, <https://www.kuaishou.com/about/policy> accessed 19 May 2019; Terms of
Service in Zhihu, Intellectual Property Guidance, art 5 <https://www.zhihu.com/terms> accessed 19 May 2019.
29 17 US C 107. The four-factor test is not substantially different from the test under fair dealing system.
30 Pierre N Leval, ‘Toward A Fair Use Standard’ (1990) 103 Harvard Law Review 1105; Nimmer David, ‘A Riff on Fair Use
in the Digital Millennium Copyright Act’ (2000) 148 University of Pennsylvania Law Review 673; Barton Beebe, ‘An
Empirical Study of US Copyright Fair Use Opinions, 1978-2005’ (2008) 156 University of Pennsylvania Law Review 549;
Gluseppina D'Agostino, ‘Healing Fair Dealing-A Comparative Copyright Analysis of Canada's Fair Dealing to UK Fair
Dealing and US Fair Use’ (2008) 53 McGill Law Journal 309.
31 Australian Copyright Act of 1968, sec 40-43. Copyright Act 1994 of New Zealand, sec 42, 43. Copyright, Designs and
Patents Act 1988 of U.K., sec 29, 30, 30A, 178.

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