Taking users' rights seriously: proposed UGC solutions for spurring creativity in the Internet age

Abstract

The past three centuries have witnessed copyright owners competing with distributors for the flow of income generated by new technologies. However, users have largely been excluded from this cake-cutting copyright game. The neglect of users’ interests has posed a serious challenge in the user generated content (‘UGC’) age. New technologies have empowered users to create UGC, whereas the existing law entitles copyright owners to block users’ access to source materials and allows UGC platforms to exploit UGC without remuneration. This article proposes a two-pronged solution in attempting to strike a better balance between copyright owners, UGC platforms and UGC creators. The first is an ex-post remuneration rule that confers on UGC creators the legal right to use copyrighted work without asking for permission but imposes an obligation to pay remuneration, both of which pass to future UGC creators. This rule incorporates elements of Creative Commons and compulsory licensing as part of the copyright rules generally applicable to all UGC creators. The second solution proposes a community-based approach, which imposes upon UGC platforms a common-law duty of monitoring infringement and includes some legal standards that ensure fair implementation of the terms of use/service of UGC platforms.