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Reforming of copyright in EU and one of the questions concerned: user-generated content

User Generated Content (UGC) is understood as referring to cases where a pre-existing work is taken by a user as a starting point for his/her own expression, modified or transformed in one way or another, and then made available online. It may also include the merging of two pre-existing works (“mash-ups”). The threshold may be lower than “a certain amount of creative effort”. It excludes the case of “mere upload”, where a user merely distributes on the internet (by uploading and sharing it) pre-existing works without having intervened in any way on the work. It also excludes “creation from scratch”, i.e. the case where a user creates a new work “from scratch”, without relying on a pre-existing work.

UGC involves (1) the reproduction right and (2) the communication to the public right (except where the UGC work is only made available to a limited group of friends or relations), including the right to make available. In addition UGC involves the adaptation right every time the pre-existing work is a copyright protected work, since the user will, in some way, arrange the work or modify it. Consequently, when UGC involves copying and adapting parts of pre-existing works and is communicated to the public, a licence from the right holder covering the user’s activities will be necessary, unless exceptions to the reproduction, communication to the public (making available) and adaptation right apply. In several cases open licences already provide this authorisation to anyone willing to produce UGC.

“Quotation” is often considered as meaning that only parts (or “small parts”) of a work may be reproduced but this is not always the case and some countries (the Netherlands) are more liberal than others (France, Luxemburg), while in Ireland, it is debatable whether the size of the quotation matters or not. Some Member States (Belgium, Italy) prohibit quotations for commercial purposes; in some Member States, the quotation may not prejudice the commercial exploitation of the work or otherwise cause a prejudice to the author, in some other Member States, such condition is not mentioned or not existing.

The incidental inclusion exception may apply to certain cases of UGC, such as the examples often referred to of private video of weddings or other private or family events where some music may be heard in the background. There is as yet no CJEU judgment on the scope of this exception, so its scope in unclear. From a policy point of view, it can be argued that “incidental” does not equal “in the background” but rather refers to “accidental” or “unintentional” takings and thus to situations in which the purpose of the user was not to capture the sounds or the images at stake but where such capture happened at the occasion of the recording of another element which was the real subject matter of the recording/creation by the user.