A study on the role of UGC platforms in copyright law : an intermediary-oriented approach

Abstract

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 striven 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 at distributors who facilitated the use of copyrighted works while exempting end users who directly used the works. 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 governing platform users’ use of UGCs is also advanced to balance the interests of UGC creators, UGC platforms and platform users in exploiting UGCs. This research not only proposes specific solutions to facilitate the creation and fair exploitation of UGCs, but clarifies the deep-rooted misunderstanding of intermediaries in copyright law through intensive historical study. By balancing the interests between producers and distributors via a series of non-proprietary schemes, copyright law allowed end users who have no capacity to present at the negotiation table to access and use copyrighted works through the latest technology at an affordable price. The intermediary-oriented approach sheds light on how copyright law should cope with a large amount of unauthorized use brought about by new technologies.