Page 215 - 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

Unlike web scraping, which undiscriminatingly copies a great number of UGCs, human
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users usually select a few specific high-quality UGCs from among a vast quantity of UGCs.
This makes it easier to prove the copyrightability of UGC and bring copyright infringement
suits. The primary legal barrier has been that generally only the copyright owner and the
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exclusive licensee have standing to file a copyright infringement suit. Due to the high cost
of owning UGC copyright, discussed in Section 6.2.2, UGC platforms may only be willing
to seek an exclusive copyright licence or copyright ownership from UGC creators who have
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the proven capability to attract users and traffic. Given that nonexclusive licences are more
common in the context of UGC, UGC platforms are likely to be hindered from directly filing
an action for copyright infringement.
For example, in Craigslist Inc. v. 3Taps., Craigslist, a popular user-generated-
advertisement platform, brought a copyright infringement claim against third parties’
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unauthorised use of user-generated ads posted on its site. The claim was rejected by the
court, holding that, ‘only the owner of an exclusive right under the copyright is entitled to
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sue for infringement’. In China, Zhihu filed an infringement action on behalf of several
Zhihu users against Sina Weibo’s marketing account when Weibo posted content created
by Zhihu users on Weibo without authorisation. This was the first Chinese case in which a
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UGC platform enforced copyright on behalf of its platform users. Due to the difficulty of
obtaining evidence and applying the existing law, this case, filed in July 2016 and heard in
November 2017, has not been decided yet. 50
This thesis posits that UGC platforms that have acquired a licence from UGC creators
that allows UGC platforms to enforce copyright through an agency clause can at least launch
copyright lawsuits jointly with individual UGC creators. In the case where multiple UGCs
on a UGC platform are used by the same infringer, the UGC platform should have the right
to bring a class action representing the UGC creators. Class actions are a type of lawsuit
that allows a group of people ‘with the same interest in the subject matter of a proceeding’

43 Section 6.3.1.
44 Minden Pictures, Inc. v. John Wiley & Sons, Inc., Case No. 14-15267 (9th Cir., July 29, 2015) in which the Ninth circuit
court affirmed that the exclusive licensee conveyed an ownership interest in the copyright which is sufficient to provide
standing to bring an infringement suit; Barto, ‘License Agent as Exclusive Licensee Has Standing to Bring Suit for Copyright
Infringement’ <https://www.bartonesq.com/license-agent-as-exclusive-licensee-has-standing-to-bring-suit-for-copyright-
infringement/> accessed 19 May 2019.
45 For instance, in delivering its first decision Tik Tok v. Huopai since its establishment, Beijing Internet Court supported a
copyright infringement claim brought by a UGC platform who has acquired an exclusive license from the UGC creator, with
an order of damages of CNY25,000.
46 Craigslist Inc. v. 3Taps., 942 F.Supp.2d 962 (N.D. Cal. August 16, 2013).
47 Ibid 973.
48 Aifaner, ‘The First UGCs Copyright Infringement Battle Launched by UGCs Platforms: Zhihu v. Weibo Marking Account’ (6
July 2016) <https://posts.careerengine.us/p/58441b297a18e34f9746dd9e> accessed 19 May 2019.
49 Ibid.
50 Jiemian News, ‘Zhihu v. Weibo Marketing Account “Zhihu Dashen” was Heard’ (7 November 2017) <https://m.jiemian.com/
article/1731430.html> accessed 18 May 2019.

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