Page 249 - 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 8 Concluding Remarks
An Intermediary-oriented Approach

demonstrating that his/her access is solely to create a UGC for a non-commercial purpose.

8.2.4 Non-commercial UGC creation levy scheme

The non-commercial UGC creation levy scheme proposed in Chapter 5 would allow
users to use copyrighted work for creating non-commercial UGCs. Meanwhile, UGC
platforms and all other services and devices whose value has been substantially enhanced by
facilitating UGC creation would be required to pay a levy to copyright collective societies,
such as 1.5% of the annual revenue of the levied service or device. Revenue-based levies
would not impose much burden on start-up enterprises and hence would alleviate the concern
over monopolies. Subject to strict supervision and equipped with professionals and advanced
technologies, collective management organisations would distribute the levies to copyright
owners according to the popularity of their works, based on the viewership statistics and
surveys of platform users.
I also set some criteria to ensure that UGCs covered by the levy scheme would be
for non-commercial purposes and would not conflict with the normal exploitation of the
copyright owners’ pre-existing works. First, the revenues the UGC creator captured should
not exceed a certain threshold. Second, the traffic the UGC attracted should not exceed a
certain upper limit. Third, if the UGC exceeded the revenue threshold or the traffic threshold,
it should earn less than a certain percentage of content identical to the content of a pre-
existing work. The criteria for the revenue, traffic and overlapping rate could be decided by a
third-party authority.
Apart from serving as the distributor of the pre-existing works on which UGCs are
based, UGC platforms also work as quasi-producers of UGCs. Although UGC platforms
do not make physical copies of copyrighted works as traditional producers do, they make
considerable investments in and profit from the promotion and commercialisation of UGCs.
Nevertheless, as Nicholas Carr pointed out, UGC platforms are even more exploitative
than traditional producers because UGC platforms can act as overseers who harvest the
products voluntarily created by countless numbers of digital sharecroppers, namely, UGC
creators. To ensure UGC platforms’ fair exploitation of UGCs via ToUs/ToSs, I carved out
11
legal standards to examine the procedural and substantive conscionability of ToUs/ToSs.
As UGC platforms’ use is inseparable from platform users’ use, I also proposed some legal
regimes governing platform users’ use of UGCs to secure UGC creators’ remuneration and
to preserve UGC platforms’ investment in maintaining UGC databases.

8.2.5 Procedural and substantive conscionability of ToUs/ToSs
To secure the procedural conscionability of the ToU/ToS, a UGC platform should give
platform users substantial notice of ToU/ToS, such as placing the hyperlink to ToU/ToS

11 Nicholas Carr, ‘Digital Sharecropping’ (Rough Type, 19 December 2006) <http://www.roughtype.com/?p=634> accessed 19
May 2019.

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