Page 24 - 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

has largely been ignored. For instance, the EU’s DSM Directive indicates that ‘reducing the
“value gap” between the profits made by Internet platforms and by content creators’ is one
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of its key goals. However, it takes only the creators of traditional professionally created
works into account. It only treats UGC creators as fair users when the UGC is for ‘the
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specific purposes of quotation, criticism, review, caricature, parody or pastiche’. Daniel
Gervais’ highly cited article ‘The Tangled Web of UGC’ discussed in detail the fair use issue
for user-copied content, user-derived content and user-authored content without analysing
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the use of these types of UGCs. Mary Wong distinguished the transformation required to
establish a copyrighted derivative work and the transformation requirement under the fair
use doctrine, noting that a UGC could be both a fair use and a copyrighted derivative work.
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However, she did not discuss the use of a UGC work. Yahong Li also acknowledged the
copyrightability of remix works, but distinguished a remix from a derivative work on the
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ground that a remix is independent of the source works on which it is based. Nonetheless,
she suggested that remix should become a new copyrightable subject matter, more from the
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social and economic perspective than as a legislative requirement for copyright protection.
Steven Hetcher conducted an insightful study of the copyright ownership of UGCs and UGC
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platforms’ exploitation of UGCs via Terms of Use/Service (ToU/ToS). Focusing on the
relationship between UGC platforms and UGC creators, he ignored the third party involved
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in the exploitation of UGCs under ToUs/ToSs users in UGC platforms. He did not disclose
the multi-layered relationship between the UGC creator, the UGC platform and other users
of the platform regulated under the ToU/ToS.
1.3 Research Questions

Corresponding to the research gaps discussed above, two following questions are
explored in this research.

72 Arthur Villasanta, ‘New EU Copyright Law Could Censor The Internet, Thousands Protest’ (International Business Times, 25
March 2019) <https://www.ibtimes.com/new-eu-copyright-law-could-censor-internet-thousands-protest-2779586> accessed
15 May 2019.
73 DSM Directive, recital 70 & article 17.
74 Gervais, ‘The Tangled Web of UGC’ (n 5).
75 Mary W.S. Wong, ‘Transformative User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use? ’
(2008) 11 Vanderbilt Journal of Entertainment & Technology Law 1075.
76 Li (n 9) 7-8.
77 Ibid.
78 Steven Hetcher, ‘User-Generated Content and the Future of Copyright: Part One—Investiture of Ownership’ (2008) 10
Vanderbilt Journal of Entertainment & Technology Law 863, 870-875; Hetcher, ‘User-Generated Content and the Future of
Copyright: Part Two-Agreements Between Users and Mega-Sites’ (n 33), 832-840.
79 This thesis considers ‘ToU/ToS’ as a countable noun, meaning the ToU/ToS agreement in a particular UGC platform.
Therefore, ToU/ToS will be used as ‘ToUs/ToSs’ unless when it is referred to as a single ToU/ToS in a particular UGC
platform. This usage applies to the whole dissertation.

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