Page 95 - 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 3 Copyright Rules for Online Intermediaries: From Safe Harbour to a New Intermediary Liability Scheme
An Intermediary-oriented Approach

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for its ‘bullet screen’ function, which allows users to comment on any video on Bilibili.
The comment will instantly fly across the screen like bullets provoking comments by other
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users, which is called ‘social viewing’. Because of its appeal to the young generation, the
bullet screen function has been embraced by other Chinese video platforms such as Todou,
Youku and Tencent. 245
By providing various services and tools to facilitate and promote UGC creation, UGC
platforms have acted more like the facilitator-distributors in the pre-Internet age and have
departed from the passive distributor assumption of the safe harbour doctrine, which
precipitates the establishment of secondary liability. In terms of the knowledge element,
compared to client-server ISPs, UGC platforms have engaged substantially more in
content management, which has made it easy to demonstrate the UGC platforms’ actual or
constructive knowledge of infringement and exclude UGC platforms from the safe harbour,
as shown in Mavrix Photographs v. Livejournal and BWP v. Polyvore, and Zhong Qin Wen v.
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Baidu. According to the case study in Section 3.2.2 on the conditions of the safe harbour
doctrine, UGC platforms may be held to have ‘the right and ability to control infringing
activities’ based on their specific conduct (e.g. listing, editing, reviewing, marketing
infringing UGCs and rendering advice to UGC creators), or the overall relationship between
the UGC platforms and UGC creators.
Furthermore, UGC platforms probably draw ‘direct financial benefits’ from UGCs. For
example, YouTube was valued at $160 billion in 2018 with more than 400 hours of videos
uploaded per minute. The highest-paid YouTube star, Ryan ToysReview, made US$22
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million. Instagram earned US$3.64 billion in 2017 and was expected to bring in US$14
billion in 2019. This is more than double the forecasted revenue of US$6.84 billion in
2018. WeChat generated US$45.56 billion in revenue with net profits of US$11.47 billion
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in 2018, contributing over US$50 billion to the Chinese economy. Although the revenue
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of UGC platforms has not been exactly equal to the ‘direct financial benefits attributable to
243 Xueqing Li, ‘China’s Video Streaming Sites Embrace “Bullet Screens”’ (Sixth Tone, 29 April 2016). <http://www.sixthtone.
com/news/791/chinas-video-streaming-sites-embrace-bullet-screens> accessed 19 June2019.
244 Zaozao Liu and others, ‘Social Viewing, Bullet Screen, & User Experience: A First Look’ (2016) 49th Hawaii International
Conference on System Sciences <https://pdfs.semanticscholar.org/e3bb/2cb054b4226db0acbfb77617a08d2bdbd533.pdf>
accessed 19 June 2019.
245 Xueqing Li, ‘China’s Video Streaming Sites Embrace “Bullet Screens”’ (n 231).
246 See supra notes 229, 230, 236 and accompanying text.
247 Kit Smith, ‘48 Fascinating and Incredible YouTube Statistics’ (Brandwatch, 4 May 2019) <https://www.brandwatch.com/
blog/youtube-stats/> accessed 12 June 2019.
248 James Loke Hale, ‘Analysts Project Instagram Will Rake In $14 Billion In Revenues In 2019’ (Tubefilter, 22 January 2019)
<https://www.tubefilter.com/2019/01/22/analysts-project-instagram-will-rake-in-14-billion-in-revenues-in-2019/> accessed
12 June 2019.
249 Matthew Lubin, ‘Tencent Reports Historic Profit Slip Despite WeChat Ad Revenue Growth’ (Jing Daily, 21 March 2019)
<https://jingdaily.com/tencent-profit-wechat-ad-revenue/> accessed 12 June 2019.
250 Mansoor Iqbal, ‘WeChat Revenue and Usage Statistics (2019)’ (Business of Apps, 27 February 2019) <http://www.
businessofapps.com/data/wechat-statistics/#3> accessed 12 June 2019.

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