Page 31 - 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 1 Introduction
An Intermediary-oriented Approach

UGC platform-oriented levy scheme could relieve the tension between incentives and access.
Once Chapter 4 has examined access to copyrighted works, Chapter 5 emphasises the
use of copyrighted works. By investigating the legal landscape surrounding the legitimacy
of using pre-existing copyrighted works to create UGCs, this chapter explores the difficulty
the existing rules (i.e. the fair use/dealing doctrine, the compulsory licence, the pay per
view system and the public licence) have had with accommodating UGC creation. This
chapter suggests that a levy should also be imposed on UGC platforms and other devices
and services that substantially benefit from facilitating UGC creation. In that way, copyright
owners can obtain a certain amount of remuneration and platform users will be allowed to
use pre-existing copyrighted works to create UGCs for noncommercial purposes.
Chapter 6 focuses on UGC platforms’ exploitation of UGCs via ToUs/ToSs. Through an
empirical study of 30 UGC platforms’ ToUs/ToSs, this chapter describes some of the problems
that could influence the validity and conscionability of ToUs/ToSs. These include, without
limitation, insufficient notice of ToUs/ToSs to UGC creators; the incapacity of UGC creators to
reach a contract; the low readability of ToUs/ToSs; the overbroad interpretation of the licence
of UGCs; the lack of remuneration for UGC creators; and the pro-UGC platform dispute
resolution clause. Some legal standards are proposed to ensure the procedural and substantive
conscionability of the ToUs/ToSs, and to ensure UGC platforms’ fair exploitation of UGCs.
UGCs are not only exploited by UGC platforms, but also by users in the UGC platforms.
Chapter 7 investigates the exploitation of UGCs by UGC platform users, including human
users and web scraping tools. UGC platforms show more hospitality to human use because
it increases the traffic of the platform without significantly interfering with the platform’s
exploitation of UGCs. ToUs/ToSs and statutory privileges such as fair use and fair dealing
have granted some entitlement to human users to use UGCs, but they only cover some
types of use, usually non-commercial use. Accordingly, I advance a scheme to address
human users’ both commercial use and non-commercial use of UGCs. Web scraping is more
controversial because it is often conducted by competitive platforms and can automatically
extract large numbers of UGCs which can generate greater value as an entire database than
the sum of the value created by individual UGCs. This may interfere with UGC platforms’
normal exploitation of UGCs. On the other hand, the internet world is governed by the open
access norm and the freedom of competition in the world of big data algorithms. This chapter
intends to delineate the complex interface between UGC creators’ copyright, UGC platforms’
interests as quasi-producers of UGCs, and platform users’ freedom to access and use UGCs.

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