Page 242 - 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

and incapable of being overridden. web scrapers whose use falls into the scope of above
exceptions could scrape the UGC database for free.
The exceptions should not only be related to the use of databases, but also to the
source of the data. Learning from the PSI Directive, an exception should be created for
208
the extraction and re-utilisation of a database consisting of government held data. With
respect to sole-source databases that contain data that cannot be found elsewhere, the misuse
doctrine that H.R. 1858 proposed could work. A putative web scraper of a sole-source
209
database, the use of which does not constitute one of the exceptions mentioned above, should
negotiate with the sole-source UGC database producer first. If negotiations fail, the scraper
could ask the court to determine a reasonable fee. The reasonable fee claim has already
been adopted by US copyright law. In 1940, the Department of Justice filed antitrust actions
210
against the two biggest copyright collective societies, ASCAP and BMI, resulting in an
agreement that allowed putative licensees to request a judicially determined ‘reasonable fee’
if they were unsatisfied with the societies’ royalty rate. 211

7.4.2 Non-proprietary claims against web scraping infringements

As discussed in Sections 7.3.3 and 7.3.4, I favour tort style law over property right
law, and an anti-unfair competition law approach over a trespass law approach. Due to
the uncertainty and high threshold of the misappropriation doctrine, I suggest that UGC
platforms should file anti-unfair competition claims against the web scraping of non-
copyrighted UGC databases. In determining the fairness of a scraping, the ‘reasonable and
non-substitutional use’ and ‘non-alternative use’ doctrines summarised in Section 7.3.5
could be applied. These doctrines could ensure that the scraped UGC database are not used
to substantially substitute for the relevant services provided by the scraped UGC platform.
They should further ensure that no other way is available that would cause less harm to the
scraped UGC platform and the UGC creators, and would generate more public benefits. If
the scraped UGC database is composed of government held data or sole-source data, the
web scraper would more likely be supported. The above suggestions are associated with the
‘content’ dimension of UGCs and address the competitive use of UGCs.
Sometimes the scraped UGCs contain personal information such as users’ profession,
age, interests, education background and income. The scraper should ask the UGC creator
for permission to use the information regardless of the purpose the scraped information is

208 See supra notes 88-90 and accompanying text.
209 See supra note 103.
210 United States v. ASCAP, 1940-43 Trade Cas. ¶56,104 (S.D.N.Y. 1941). United States v. BMI, 1940-1943 Trade Cas. (CCH) ¶
56, 096 (E.D. Wisc. 1941).
211 See note 140 in Chapter 1 and accompanying text. ‘Since their entry in 1941, the Department has periodically reviewed the
operation and effectiveness of the Consent Decrees. Both Consent Decrees have been amended since their entry. The ASCAP
Consent Decree was last amended in 2001 and the BMI Consent Decree was last amended in 1994’. The United States
Department of Justice <https://www.justice.gov/atr/ascap-bmi-decree-review> accessed 14 April, 2019.

• 228 •