Page 241 - 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

scraper should request a licence from the UGC creators pursuant to proposed scheme
discussed in Section 7.2.3. Alternatively, the UGC platform could act as an authorised
agent to bring copyright actions against unauthorised use, as discussed in Section 7.2.4. The
compensation should be allocated to each copyrighted UGC creator. If the UGC itself is not
copyrightable but the selection or arrangement of it meets the originality threshold, the UGC
platform could claim copyright on the UGC database as a collective work. The web scraper
should seek a licence from the UGC platform, unless the web scraping falls within the scope
of statutory exceptions. According to the remuneration scheme in Section 6.4.2, the licence
fees will result in indirect remuneration. The scraped UGC platform should send emails to
UGC creators and post notice on the platform of the web scraping, and thereby allowing
UGC creators to claim indirect remuneration.
In addition to the pre-existing data mining exception and fair use, I suggest some
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tailor-made exceptions for web scraping to strike a balance between encouraging UGC
platforms’ investment in creating databases and preserving freedom of information and
competition. The proposed exception draws insight from the current EU Database Directive
and the PSI Directive. It extends the private purpose exception to electronic databases, and
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applies all exceptions to both the extraction and re-utilisation of databases. Specifically,
the exception should allow users of a copyrighted, publicly available UGC database to
extract and/or re-utilise the content ‘for private purposes’, ‘for the purpose of illustration
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for teaching or scientific research’ and ‘for the purpose of public security, administrative,
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or judicial procedure’. This proposed exception could be referred to as the ‘lawful use
exception’.
The ‘insubstantial use exception’ under the EU Database Directive should also be
applied to copyrighted UGC databases. Users of a publicly available UGC database should
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be allowed to extract and/or reuse insubstantial parts of its content (being either qualitatively
or quantitatively insubstantial) for any purpose, provided that such use would neither
conflict with the normal exploitation of the UGC database, nor unreasonably prejudice the
legitimate interests of the UGC database producer and the creators of the UGC contained in
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the database. Both the lawful use and insubstantial use exceptions would be mandatory
201 Some jurisdictions have incorporated a data mining exception to allow certain copying of UGC database. However, this
exception normally restricts its beneficiaries to certain research institutions and requires the use of data is for purpose such
as research, education and preservation of cultural heritage. For example, the data mining exception allows a university
researcher scanning and analysing scientific articles. UK Copyrights, Designs and Patents Act (CDPA), art 29A. EU’s
Directive on Copyright in the Digital Single Market, art 2(3) and art 3.
202 See supra notes 88-90 and accompanying text.
203 Database Directive, art 6(2)(a).
204 Ibid, art 6(2)(b).
205 Ibid, art 6(2)(c).
206 Ibid, art 8.
207 Ibid.

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