Page 220 - 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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litigation to allow for sufficient discussion. The Australian courts once followed the ‘sweat
of the brow’ doctrine and awarded copyright to non-original databases such as a white pages
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telephone directory. However, in similar but more recent cases, a creativity standard that is
more similar to its EU counterparts has prevailed. 73
As many UGC platforms do not select or arrange UGCs in an original way, and
originality standards are highly diverse and even uncertain, copyright would not be the best
approach to curtailing web scraping.
7.3.3 Sui generis database right

Rather than focusing on the originality of the selection or arrangement of UGC, the sui
generis database right rewards the ‘human, technical and financial resources’ allocated for
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the creation of databases. This is essentially the same as applying the ‘sweat of the brow’
doctrine to the field of databases. Nevertheless, the sui generis database right has only been
adopted in Europe and is not considered to have played a role in encouraging database
creation. 75
1) The European Union
In 1996, the EU introduced Database Directive 96/9/EC (hereinafter, the Database
Directive) to provide sui generis protection for databases. Although a new law, the General
Data Protection Regulation (GDPR) was introduced in 2016 and passed in 2018, the GDPR
has mainly addressed the privacy concerns of individual users over their personal data.
Personal data includes ‘any information relating to an identified or identifiable natural
person’ such as ‘a name, an identification number, location data, an online identifier or to one
or more factors specific to the physical, physiological, genetic, mental, economic, cultural
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or social identity of that natural person’. The Database Directive continues to provide the
legal framework that protects UGC platforms’ interest in their UGC databases. Article 7 of
the Directive articulates the object of protecting databases:

Member States shall provide for a right for the maker of a database which
shows that there has been qualitatively and/or quantitatively a
substantial investment in either the obtaining, verification or presentation

71 Facebook, Inc. v. Power Ventures, Inc., No. C 08-5780 JF (RS), 2009 WL 1299698, at *4 (N.D. Cal. May 11, 2009) (the
Court denied Defendants' Motion to Dismiss Plaintiff's claims for copyright infringement).
72 Telstra Corp. Ltd. v. Desktop Mktg. Sys. Pty Ltd. [2001] FCA. 612 (Austl.), para 20 <http://www.austlii.edu.aulau/cases/cth/
federal-ct/2001/612.html> accessed 19 May 2019
73 lceTV Pty Ltd. v. Nine Network Austl. Pty Ltd. [2009] HCA 14 (Austl.) <http://www.austlii.edu.au/au/cases/cthfHCA/2009/14.
html> accessed 19 May 2019; Telstra Corp. Ltd. v. Phone Directories Co. Pty Ltd. [2010] FCA 44 (Austl.) para 15, <http://
www.austlii.edu.au/au/cases/cthlFCA/2010/44.html> accessed 19 May 2019.
74 Database Directive, recital 7.
75 European Commission, Evaluation of Directive 96/9/EC on the Legal Protection of Databases (2018) 46.
76 The General Data Protection Regulation (EU) 2016/679 (GDPR), art 4 (1).

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