Page 251 - 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

using the scraped UGC database in a way that competes with the scraped platform. ToUs/
ToSs cannot limit scrapers’ access to UGC platforms but they can set the conditions for
scraping such as the speed of the scraping tools and the frequency of the requests the scraper
sends.
The non-commercial UGC levy schemes and the non-commercial UGC access
exemption aim at facilitating the creation of UGCs based on pre-existing copyrighted works
by exempting non-commercial UGC creators from copyright infringement liability. The
conscionability requirements on ToUs/ToSs and the proposed scheme for platform users’ use
of UGCs address all types of UGCs, wishing to provide some guidance to the design of new
rules for UGC exploitation. As copyright history shows, new rules will emerge driven by the
increasing commercialization of technologoes and the expansion of interest groups.
Though private parties such as UGC platforms can develop their own solutions which
might respond to new technology more efficiently and more swiftly, the private-generated
solutions can only take the private parties’ interests into account while ignoring the
interests of the general public who have no capacity to present at the negotiation table. The
oligopolistic market of UGC platforms further weakens the bargaining power of users. That
is why most ToUs/ToSs are unconscionable in requiring UGC creators to grant overbroad
licences to UGC platforms and that is why legal intervention is in need.

8.3 Significance of the Study

To the best of my knowledge, this thesis made the first attempt to explore the
intermediary-oriented approach underpinning copyright law. Through balancing the interests
between intermediaries, copyright law has allowed large numbers of end users to obtain and
use copyrighted works at an affordable price. This intermediary-oriented approach has further
implications on how copyright law should cope with new technologies that technically
enable large numbers of end users to use copyrighted works without copyright owners’
authorisation. To facilitate the creation and fair exploitation of UGCs, this thesis applied the
intermediary-oriented approach to the context of UGC, and identified dual intermediary roles
of UGC platforms, both as facilitator-distributors of pre-existing works contained in UGCs
and quasi-producers of UGCs.
By emphasising UGC platforms’ role as facilitator-distributors, this thesis imported
non-commercial UGC levy schemes that facilitate UGC creators’ access to and the use
of copyrighted works to create UGCs, and secure the copyright owners’ revenues paid
by UGC platforms. In this way, UGC creation can be promoted and copyright owners’
incentives can be preserved. In addition to the creation of UGCs, this thesis showed how
the fair exploitation of UGCs could be ensured by both UGC platforms and platform users.
Considering UGC platforms’ significant investment in and profits from the organisation,
promotion and commercialisation of UGCs, UGC platforms can be regarded as quasi-
producers of UGCs, Correspondingly, this thesis formulated a conscionability test for ToUs/

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