User Generated Content and Copyright

What is “User-generated Content”?

Facebook, Twitter, Youtube, Instagram, Flickr, Wikipedia and its variants are all well-known and vivid examples of media platforms with their primary source of contents from their users themselves. “User-generated contents” (UGC) is an increasingly familiar concept in today’s technology-permeated society. You and I may well be authors frequently posting contents on social media circulating on the wilderness of the Internet.

UGC may be defined as “any form of digital contents created and published by users of an online system or service, such as blogs, discussion forums, posts, chats, tweets, podcasting, digital images, video, audio files, and advertisements.”

There remains uncertainty over an internationally accepted definition of UGC but essential features include

1) Publication: that the work is published on a publicly accessible website, or on a page of a social networking site

2) Creative effort: that the work involves some innovative effort or adapting available works to create a new one.

3) Creation outside of professional routines and practices: that the work is created not for specific work purposes and without expectations of profit or remuneration.  

Intellectual Property Challenges

The guide below seeks to establish a step-by-step analysis of intellectual property challenges in relation to the use of websites and online platforms from the perspective of a start-up company. Nonetheless, you should note that the analysis/solution to such use of UGC highly depends on: (1) the company’s business models and (2) the nature of the UGC.

As a budding start-up company, websites or social media platforms may often be created at early stage to promote visibility and market to the boundless population of Internet users. However, owners of such online platforms or online service providers (OSPs) may face intellectual property issues when they allow users to contribute to the contents.

Issue 1: Who owns the copyright of UGC?

Issue 2: Who is liable for UGC that infringes copyright?

Issue 1: Who owns the copyright of UGC?

Copyright is a form of property rights attached to the work created. Under the Copyright Ordinance in Hong Kong, the first ownership of copyright of a work belongs to its “author”, the person who originally creates the work.

Owner of copyrights has an array of exclusive rights in relation to his work, such as to copy the work, issue, rent and make available such copies to the public, perform, show or play the work in public, or to make adaptation of the work.

In the context of UGC, the user who creates the contents would be the copyright owner by default.

Terms and Conditions of Use

However, this may be subject to the “Terms and Conditions of Use” of the corresponding social media site. For example, Facebook’s Terms of Service Agreement provides that the user will grant it a non-exclusive, transferable, sub-licensable, royalty-free world-wide license to use UGC.

Therefore, you may consider inserting similar provisions on the ownership of copyright in the Terms and Conditions of Use which all users must agree to before subscribing or utilizing any of the publishing functions your website may provide.

Issue 2: Who is liable for UGC that infringes copyright?

Potential liability of OSPs

Where the UGC uploaded and posted by individual users infringe copyrights in ways such as copying, issuing copies of the work to the public, the OSPs who store, access and maintain such contents may also be potentially liable for secondary infringement by possessing or dealing with infringing copy.

Under Section 31 of the Copyright Ordinance (Cap 528), the copyright in a work is infringed by a person who, without the license of the copyright owner

  • possess for the purpose of or in the course of any trade or business;
  • sells or lets for hire, or offers or exposes for sale or hire;
  • exhibits in public or distributes for the purpose of or in the course of any trade or business; or
  • distributes (otherwise than for the purpose of or in the course of any trade or business) to such an extent as to affect prejudicially the owner of the copyright

a copy of a work which is, and which he knows or has reason to believe to be, an infringing copy of the work.

Therefore, a OSP may be liable for the infringing act of individual users if the infringed work is distributed to such an extent that affects prejudicially the owner of the copyright. Whether the copyright owner’s right is prejudiced is an issue to be determined by the court on a case-by-case basis under the factual circumstances.

Risk management by the OSPs

In light of the potential risks faced by OSPs for infringement claims, precautionary systems should be devised and implemented to deal with the infringing contents posted by individual users.

  • Assessing the nature of your website and sensitivity of the contents your website may invite  
  • Build in identity verification mechanism to avoid absolute anonymity such as requiring new users to provide age details and other personal particulars (subject to Personal Information Collection Statement (PICS) and Privacy Policy)
  • Regular supervision and frequent scrutiny of the contents posted on the website  
  • Allow a mechanism to remove and monitor sensitive or potentially infringing contents expeditiously (subject to Notice and Takedown Policy)
Checklist: You should –   Understand the meaning of “user-generated contents” on websites Understand the potential liability in relation to copyright for these contents Have a basic idea of risk management and to minimize such risks by addressing them in the terms and conditions Be beware that the IP issues related to the UGC content depends on a number of factors including: Company’s business model; and The nature of such UGC content.
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