User-Generated Content – Towards a New Use Privilege in EU Copyright Law
RESEARCH HANDBOOK ON INTELLECTUAL PROPERTY AND DIGITAL TECHNOLOGIES, Tanya Aplin, ed., Cheltenham: Edward Elgar Publishing 2019, Forthcoming
26 Pages Posted: 7 Feb 2019
Date Written: June 16, 2018
User-generated content (UGC) is a core element of many internet platforms. Today’s internet users upload a myriad of literary and artistic works every day. A delicate question arising from this user involvement concerns copyright infringement. UGC may consist of self-created works and public domain material. However, it may also include unauthorized takings of third party material that enjoys copyright protection. As UGC has become a mass phenomenon and a key factor in the evolution of the modern, participative web, this problem raises complex issues and requires the reconciliation of divergent interests: users, platform providers and copyright holders are central stakeholders.
In the EU, the UGC problem features prominently in the debate about a so-called “value gap” in the online distribution of copyrighted content. The current value gap debate focuses on the neutralization of the safe harbour for hosting as an instrument to generate licensing revenue for the dissemination of UGC. However, a closer analysis of the breathing space for new copyright limitations in international and EU law shows that the adoption of a new use privilege for the creation and dissemination of UGC would be preferable. If such a new use privilege is combined with the obligation to pay equitable remuneration, it satisfies all requirements of the international three-step test and creates a new revenue stream that could close the value gap. In comparison with the erosion of the safe harbour for hosting, the adoption of a new use privilege for UGC has the important advantage of avoiding an encroachment upon fundamental rights and safeguarding the open, participative web 2.0. It also has the advantage of generating a revenue stream that benefits not only the creative industry but also individual creators.
Keywords: user-generated content, three-step test, freedom of expression, value gap, parody, pastiche, equitable remuneration, WTO panel reports, fair use, copyright limitation, safe harbour for hosting
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