Page 250 - 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

in a conspicuous location with easily noticed size and font via both computers and mobile
devices. Material changes to the ToU/ToS should also be posted via email and on the
website. UGC platforms should establish the lowest age for platform users based on contract
law, privacy protection law and other relevant laws to ensure the capacity of the offerees. A
human-readable version of ToUs/ToSs would also be necessary to increase the readability of
ToUs/ToSs.
In terms of the substantive conscionability of ToUs/ToSs, the scope of the licence for
UGC platforms’ use of UGCs could not exceed the extent that is necessary for the UGC
platforms to store, host and promote UGCs. For example, many UGC platforms should not
incorporate the right to adapt UGCs. UGC platforms could not assign but could sublicence
the licence to third parties, provided that the UGC creators receive adequate notice of such
sublicences and have the right to terminate them. In terms of the period, UGC platforms
should delete the words ‘perpetual’ and ‘irrevocable’ when describing the licence of UGCs
granted by UGC creators, and explicitly incorporate a termination clause. Coping with the
increasing commercialisation of UGCs I also suggest an ex-post remuneration scheme to
remunerate UGC creators for both the direct and indirect exploitation of their UGCs. Further,
the dispute resolution clause contained in ToUs/ToSs should ensure that platform users have
the practical ability to effectively vindicate their statutory rights in the selected forum.

8.2.6 Proposed scheme to address platform users’ use of UGCs

UGCs are not only exploited by UGC platforms, but also by platform users. Because
of the conflicts of interests between UGC creators, UGC platforms, and platforms users in
using UGCs, the legal framework governing UGC platform users’ use of UGCs are still in
flux. Therefore, I propose some schemes to address human use of UGCs and web scraping
of UGCs respectively. Provided that ToUs/ToSs do not specify otherwise and statutory
privileges do not apply, the non-commercial human use of a UGC should be free and the
user should only have an obligation to inform the UGC creator of the use. This would help
the UGC creator obtain indirect remuneration. UGC platforms have shown little hospitality
to web scraping because web scraping extracts an extensive number of UGCs, which can
generate much more significant value as a whole database than the sum of the value created
by individual UGCs.
UGC databases that meet the originality test could enjoy copyright protection subject
to a mandatory ‘lawful use exception’ and an ‘insubstantial use exception’ that could not be
overridden. A copyrighted UGC database consisting of government held data and sole-source
data would be subject to ‘reasonable fee’ claims that allow web scrapers to use the database
for a court-determined price. The scraped platform should give notice to UGC creators about
web scraping. This would allow the UGC creators to join the remuneration scheme. Non-
copyrighted UGC databases should be addressed by the ‘reasonable and non-substitutional
use’ and ‘non-alternative use’ doctrines under competition law to prevent web scrapers from

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