Page 219 - 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

Whether a UGC database is treated as a collective work depends on both the design
of the UGC platform and the originality standard of the particular jurisdiction where the
decision is made. Many UGC platforms cannot pass the originality test because such
platforms frequently arrange user-generated answers or reviews in chronological order,
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alphabetical order or according to their popularity, such as the number of upvotes or likes.
In Dianping v. Aibang, a landmark case in China over the copyright of a UGC database, the
plaintiff ran a popular website called Dazhong Dianping that hosted customer reviews of
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restaurants and hotels. The defendant scraped a large number of customer reviews. The
district court supported the plaintiff’s copyright claim, but the Beijing No. 1 Intermediate
Court reversed on the ground that the customer reviews were arranged chronologically,
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which was common among similar websites. Nevertheless, some jurisdictions with lower
originality thresholds have supported UGC copyright claims. For instance, Craigslist, a
popular US user-generated-advertising website, also displays its ads in chronological order,
but it has successfully persuaded the court to acknowledge its copyright. The UGC database
has been treated as a collective work because Craigslist ‘display[ed] some minimal level of
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creativity’ in ‘deciding which categories to include and under what name’.
Court opinions have been split even in the same country. For example, the US is believed
to have adopted a ‘minimal degree of creativity’ standard and rejected the ‘sweat of brow’
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doctrine growing out of the Feist case. However, several months after the Feist decision,
the US Court of Appeals, Second Circuit stated in Key Publ’ns, Inc. v. Chinatown Today
Publ’g Enters., Inc., that ‘[w]hile...the “copyright in a factual compilation is thin,” we do not
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believe it is anorexic’. The court awarded copyright to a white pages telephone directory
that arranged information in alphabetical order though the alphabetical order ‘was typical of
most directories with listings in standard categories like accountants, bridal shops and shoe
stores’. In recent cases, the courts have shown a reluctance to dismiss UGC platforms’
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claims for copyright infringement of collective works at an early stage of litigation. Instead,
they have left the question of the copyrightability of UGC databases to a later point in the

63 E.g. Zhihu, Quora, Tripadvisor, dianping.com.
64 Dianping v. Aibang (2010) Hai Min Chu Zi No.4253 Civil Judgement.
65 Ibid; Dianping v. Aibang (2011) Yi Min Zhong Zi No. 7512 Civil Judgement.
66 Craigslist Inc v 3Taps, Inc 942 F Supp 2d 962, 972 (N.D. Cal. 2013).
67 Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340, 349 (1991).
68 Key Publ'ns, Inc. v. Chinatown Today Publ'g Enters., Inc., 945 F.2d 509, 515 (2d Cir. 1991) (quoting Feist Publn's, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991)).
69 Key Publ'ns, Inc. v. Chinatown Today Publ'g Enters., Inc., 945 F.2d 509, 515 (2d Cir. 1991).
70 Craigslist v. Naturemarket, 694 F.Supp.2d 1039, 1056 (N.D. Cal. 2010) (granting default judgment on Craigslist’s copyright
claim); Craigslist v. Kerbel, No. C-11-3309 EMC, 2012 WL 3166798, at *9 (N.D. Cal. Aug. 2, 2012); DHI Group, Inc.
v. Kent, No. CV H-16-1670, 2017 WL 4837730, at *4 (S.D. Tex. Oct. 26, 2017) (‘Since Oilpro alleges the entire website,
including the page layout and organization of the member profile pages, is part of its registered copyright and that DHI
published this information on its own website, Oilpro has stated a plausible claim for copyright infringement’.)

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