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White paper – Providing a legally sound space for user-generated content

Copyright law is relevant for UGC both because UGC creators are themselves potential holders of rights in a new work and because UGC can result from the re-use of pre-existing works protected by copyright. It should be noted that, while no precise definition of UGC has yet been established, the mere sharing of existing copyright protected content (“file-sharing”) does not constitute the creation of a new work. Nor does it imply a transformative use. UGC creators should be able to claim and exercise their rights as creators if they wish to, and they should understand the rules that apply to works that include parts of works that are the fruit of others’ creativity and investment. Right holders in pre-existing works should also be able to exercise their rights, as for any other use of their work.

In a number of cases, existing works are used in UGC as a quotation, for parody or similar purposes, or just incidentally, a typical example being a family celebration captured while music is played in the background. These uses are in fact already covered by existing exceptions in the EU framework. In these cases too, however, the relevant exceptions are optional for Member States to introduce (some of them have not done so), diverge in their national implementation and, in any event, have no cross-border effect. This reduces their otherwise primary relevance for UGC, which by its nature runs on a borderless internet.

For other uses (e.g. playing the latest music hit together with a homemade video, which implies the synchronization of music with images), the clearance of rights in the pre-existing material used applies. This allows for UGC to establish itself as a normal but innovative source of exploitation of content (and therefore of revenue for right holders). At the same time it is fundamental to ensure convenience and transparency for those engaging in UGC.

At the moment, licencing schemes or similar arrangements that respond to that need are already available. They are concluded directly by UGC-hosting platforms and right holders, and often allow users to upload content not only on those platforms but also in their personal blogs or social media space. Micro-licensing schemes, providing convenience for bloggers or small business for example, are also being developed. It is however important to ensure that the application and scope of these mechanisms are understood by those engaging in UGC activities and that they become common practice across the industry.

UGC show how important it is to have tools to allow people to identify works, their right holders and their copyright status (informing for instance about right claims or the entrance of a work into the public domain). If such tools are standardised, interoperable, easy to use and respected, they will be crucial in identifying, using and remunerating pre-existing works and in enabling UGC authors to claim their rights if they wish to do so.