Page 216 - 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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to be represented collectively by a member of that group. Class actions have been well-
established in many jurisdictions. If multiple UGCs on the same platform are used by a third
party in the same way, the UGC platform meets the criterion for bringing a class action.
A typical problem with class actions, however, is the high cost incurred for negotiating
and coordinating a large group of claimants with competing interests. UGC platforms can
overcome this difficulty by gaining permission from every potential claimant (namely, UGC
creators) through the agency clause in ToU/ToS at the time the content is uploaded.
7.3 Web Scraping of UGC Databases

7.3.1 Character and definition of web scraping of UGC databases

Human users’ use of UGCs, either in singular or multiple, focuses on the creativity and
quality of the UGCs. Considering the small percentage of high-quality UGCs, human users
can only use a limited number of UGCs. In contrast, with big data technology, collecting
a huge number of UGCs can generate considerably more value than the sum of the value
created by individual UGCs. Amassing a large collection of UGCs, rather than individual
UGCs, is the key to a UGC platform securing future business. This thesis refers to the
collection of UGCs as a UGC database. It is a collection of independent UGCs arranged in a
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systematic or methodical way and is individually accessible online. There is no originality
requirement for either the individual UGCs or the way the UGCs are selected and arranged,
because databases that do not meet the originality requirement can still be protected through
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legal regimes other than copyright law. The UGC platform that hosts the UGC database
is the database producer because the platform invests in and profits from the creation of the
database. Some UGC platforms have created their own works based on the UGC databases
they host, usually in the form of statistical reports, such as lists of most popular keywords
searched across categories, the records of best sellers across industries and viewership
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statistics. However, the above works are created by the UGC platforms rather than by UGC
creators, and thus cannot be regarded as UGCs. As this chapter specifically discusses the use
of UGCs, the use of the above derivative works is not discussed here.
Due to the importance of the UGC database to the UGC platform, competitive websites
prefer to exploit the UGC database rather than individual UGCs from the UGC platform.
For example, several major travel platforms in China (Dianping, Aibang, Xiecheng,
Qunar and Sina Weibo), have filed lawsuits over the web scraping of user-generated

51 Class action, legalpedia <http://www.legalpediaqld.org.au/index.php/Class_actions> accessed 20 July 2019.
52 Drawing on the definition of database under EU Database Directive 96/9/EC (Database Directive hereafter), art 1.2.
53 See Section 7.3.3~7.3.6.
54 Taobao v. Meijing (2018) Zhe 01 Min Zhong No.7312 Civil Judgement.

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