Page 22 - 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 1 Introduction
An Intermediary-oriented Approach

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EU in 2001 has already incorporated these purposes into the fair dealing exception, the
DSM Directive appears to only confirm the fair dealing rule in the UGC context rather than
add a general exception for UGCs. Martin Senftleben suggested that the pastiche exception
under the DSM directive could be interpreted as an exception covering various kinds of
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UGC creations. Yet this interpretation is neither consistent with the fair dealing tradition
under the Copyright Directive nor in line with the normal definition of pastiche. 54
The US has adopted a more flexible fair use doctrine, and whether UGC creation is
covered by it has spawned fierce debate among academics. For instance, Robert Merges
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argued that UGC creators ‘should not be given a legal right to remix any and all content’.
This was endorsed by Jane Ginsburg, who found that the current copyright regime had
already been re-balanced in favour of users over the last ten years by the expanding
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copyright defences and immunities. Paul Goldstein even claimed that expanding fair use
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would encroach ‘copyright’s private domain’ and harm the copyright owners’ interests.
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Other commentators, such as Steven Hetcher, Andrew Gilden, Pat Aufderheide and Peter
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Jaszi have argued that fair use should be the rule rather than the exception in the context of
UGC creation, at least certain types of UGC creation. Some have gone a step farther, arguing
that fair use is merely a defence that is insufficient to protect UGC creators. They have
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proposed a positive right of remix for UGC creators.
To encourage UGC creation and secure remuneration for copyright owners, some studies

52 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects
of copyright and related rights in the information society (Copyright Directive), art 5.3(k). In 2014, UK passed the Copyright
and Rights in Performances (Quotation and Parody) Regulations 2014 to add an exception for “parody, caricature and
pastiche” as Section 30A of the Copyright, Designs and Patents Act 1988.
53 Senftleben (n 38) 14.
54 According to the Intellectual Property Department of HKSAR, pastiche is defined as ‘an artistic work in a style that imitates
that of another work, artist or period’. (Intellectual Property Department of the Government of the Hong Kong Special
Administrative Region, Copyright (Amendment) Bill 2014
Frequently Asked Questions <https://www.ipd.gov.hk/eng/intellectual_property/copyright/Q_A_2014.htm> accessed 12 June
2019.) According to the Intellectual Property Office in UK, ‘pastiche is musical or other composition made up of selections
from various sources or one that imitates the style of another artist or period’. (Intellectual Property Office, ‘Exceptions
to Copyright: Guidance for Creators and Copyright Owners’ (October 2014) 6 <https://assets.publishing.service.gov.uk/
government/uploads/system/uploads/attachment_data/file/448274/Exceptions_to_copyright_-_Guidance_for_creators_and_
copyright_owners.pdf> accessed 12 June 2019).
55 Robert Merges, ‘Locked Remixed’ (2007) 40 UC Davis L Rev 101, 102.
56 Jane C Ginsburg, ‘Copyright 1992-2012: The Most Significant Development’ (2012) 23 Fordham Intellectual Property Media
& Entertainment Law Journal 465, 487.
57 Paul Goldstein, ‘Copyright's Commons’ (2005) 29 Columbia Journal of Law & Arts 1, 5.
58 Steven Hetcher, ‘The Kids Are Alright: Applying a Fault Liability Standard to Amateur Digital Remix’ (2010) 62 Florida
Law Review 1275, 1303.
59 Andrew Gilden, ‘Raw Materials and the Creative Process’ (2015) 104 Georgetown Law Journal 355, 362
60 Pat Aufderheide and Peter Jaszi, ‘Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video’ (AUSOC,
January 2008) <http://archive.cmsimpact.org/sites/default/files/CSM_Recut_Reframe_Recycle_report.pdf> accessed 15 May
2019 (arguing that fair use should be the safe harbor for a substantial amount of user-generated video).
61 Li and Huang (n 1) 81-82; Li (n 9) 25.

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