Page 5 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

PREFACE

UGC (user-generated content), which refers to the unprecedented proliferation of
content created or re-created by amateurs online, has triggered fierce challenges to copyright
law. With the commercialization of UGCs, copyright owners might launch lawsuits
against UGC creators for using pre-existing copyrighted works without permission or
compensation. However, as it is often UGC platforms rather than UGC creators who profit
from the commercialization of UGCs, enforcing copyright against UGC creators would be
inefficient and unfair. The solution to this dilemma, as this study suggests, is to refocus on
intermediaries, namely, UGC platforms.
The history of copyright law is dominated by intermediaries: producers have
consistently strived for copyright extension to distributors brought about by new distribution
technologies. Even after the shift in the capability of reproduction from professional
distributors to end users, copyright law still targeted distributors who facilitated the use of
copyrighted works while exempting end users who directly engaged in the use. This thesis
calls it the intermediary-oriented approach in copyright law. Nevertheless, the intermediary-
oriented approach failed to work for online intermediaries in the early Internet age due to
the passive role that Internet service providers played in transmitting, caching, hosting or
locating content. The intermediary-oriented approach suits UGC platforms more because of
their crucial role in facilitating the distribution of pre-existing works contained within UGCs.
This study suggests UGC platform-oriented levy schemes that allow users to freely access
and use pre-existing copyrighted works to create UGCs for non-commercial purposes, and
require UGC platforms to contribute a pre-determined amount of remuneration toward the
copyright owners of the pre-existing copyrighted works.
In addition to the role of distributors, UGC platforms also act as quasi-producers of
UGCs due to their considerable investments in and profits from the promotion of UGCs.
UGC platforms are even more exploitative than traditional producers because in most cases
UGCs are voluntarily created by UGC creators. To ensure UGC platforms’ fair exploitation
of UGCs via Terms of Use/Service (ToU/ToS), this research carves out the legal standards to
examine the procedural and substantive conscionability of ToUs/ToSs. A proposed scheme