Page 214 - 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

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serve as evidence if the UGC creator decided to apply for indirect remuneration. If the non-
commercial use of a UGC is to create a new UGC for non-commercial purposes, indirect
remuneration could also be treated as a levy for the previous UGC creator.
The commercial use of a UGC should require a licence from the UGC creator.
Commercial users should be treated as professional users subject to proprietary regimes
rather than end users subject to non-proprietary regimes. It is noteworthy that because a UGC
platform can sublicence the use of a UGC, the commercial user can seek a licence directly
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from the UGC platform and avoid the need to obtain permission from the UGC creator. In
this case, the UGC creator can gain direct remuneration pursuant to the direct remuneration
scheme proposed in Section 6.4.2. Alternatively, the UGC creator can terminate the UGC
platform’s sublicence with the commercial user or terminate the entire licence the UGC
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creator granted to the UGC platform. Of course, the commercial user’s notice of how the
UGC is used also serves as evidence supporting the popularity of the UGC, which the UGC
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creator can rely on to apply for indirect remuneration.
7.2.4 UGC platform as the agent for filing infringement actions

If a use is not covered by the ToU/ToS or statutory privileges, and does not follow the
proposed schemes for human use of UGCs discussed above, the UGC creator can file a
copyright infringement action against the user. However, the value of an individual UGC and
the loss caused by its unlawful use may be too small to establish the illegal user’s liability
for infringement. Even if the suit is legally possible, the prohibitive cost of litigation would
easily thwart the attempt to enforce copyright. Further, individual UGC creators are not the
only victims. UGC platforms also have a claim on the misappropriation because republishing
UGC elsewhere diverts traffic from the original UGC platform. Compared with individual
UGC creators (copyright owners), UGC platforms are also more financially equipped to
file legal actions for infringement. Therefore, some UGC platforms have incorporated an
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agency clause into their ToUs/ToSs, requesting UGC creators’ permission and authorisation
for the UGC platform to ‘act as [a] nonexclusive agent to take enforcement action against
any unauthorised use by third-parties of any of [user-uploaded] Content outside of the…
Platform or in violation of [the] Terms of Service’. Zhihu, the most popular Q & A platform
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in China, similar to Quora in the US, has published monthly and biannual reports on its
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protection of Zhihu users’ copyrights since 2015.
36 Section 6.4.2.
37 Section 6.4.1.2.4
38 Ibid.
39 Section 6.4.2.
40 Among the 30 UGCs platforms in my data set, Zhihu, Quora, TikTok, Weibo and Wechat have included the agency clause.
41 Terms of Service in Quora (n 3) art 3(c)(v). Similar expression in Zhihu, TikTok, Weibo and Wechat.
42 Zhihu Copyright Protection Column <https://zhuanlan.zhihu.com/banquan> accessed 18 June 2019.

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