User-Generated Content and Copyright Dilemma in Web 2.0 Era

Home , Connectivity (media), UGC (cinema operator)

Department of Law

Spring Term 2019

Master Programme in Intellectual Property Law Master’s Thesis 30 ECTS

User-generated content and Copyright Dilemma in Web 2.0 Era

Should the Specific Exception be introduced in The EU?

Author: Chotima Thetsidaeng Supervisor: Kacper Szkalej

Abstract

It is undeniable that internet nowadays is part of our life and community. Internet opens door for expression of ideas and opinions which can both be given and taken freely. Moreover, with the rise of the new internet model, Web 2.0, the platform becomes wider and more interactive which has an effect on the copyright aspect all over the world. User-generated content was soon born as a result of Web 2.0 and caused unsolvable legal issues in the copyright regime due to its transformative nature which acts in contrary to the exclusive right of the author. This thesis paper seeks the best solutions for the complicated nature of user-generated content in online platform which has been causing legal tension in copyright law for quite some time. The paper will focus mainly in the scope of EU copyright law as well as Thai copyright law. The Canadian new specific exception for user-generated content and its semi-open “fair dealing” exception will be discussed as a possible approach to the solution. Moreover, Human rights aspect in scope of freedom of expression will be analyzed in order to find the balance between the copyright and human rights in the most effective way to serve the core purpose of copyright law.

Table of content

1. Introduction 6 1.1 Background and Purpose 6 1.2 Method and Materials 7 1.3 Delimitations 8 1.4 Structure 8 2. Digital era and User-generated content 9 2.1 Digital society and the rise of Web 2.0 9 2.2 What is user-generated content? 12 2.3 The role of UGC in current society 13 2.4 Defining UGC issue in EU copyright context 14 3. UGC and Copyright in EU 17 3.1 Source of law and scope of protection 17 3.2 Reproduction right in the EU 18 3.3 Adaptation and derivative work in the EU 21 3.4 Transformative work within the EU 23 3.5 Exceptions and limitations 26 3.5.1 Three-step test 31 3.5.2 How about implementing U.S. Fair use? 33 3.6 New provision in Directive on Copyright in the 34 Digital Single Market 4. Copyright and human rights 36 4.1 Freedom of expression 36 4.2 Relationship between freedom of expression and UGC 38 5. Economic view 40 5.1 Tragedy of commons doctrine 40

6. User-generated content and copyright law in Thailand 42 6.1 UGC Phenomena in Thailand 42 6.2 Thai Copyright system 44 6.3 How Thai copyright law copes with UGC issue 45 7. Crafting the possible solution towards transformative work 49 7.1 Emphasizing users’ right 49 7.2 Canadian specific exception for UGC 51 8. Conclusion 55 9. Bibliography 57

Table of abbreviations

CJEU Court of Justice of European Union DMCA Digital Millennium Copyright Act DRM Digital Rights Management ECD E-commerce Directive ECHR European Convention on Human Rights ECtHR European Court of Human Rights ICRC Irish Copyright Review Committee ISP Internet service provider IPR Intellectual property rights InfoSoc Directive Copyright in the Information Society Directive OECD Organization for Economic Co-operation and development P2P Peer-to-Peer RSS Really simple syndication or Rich site summary TRIPS The Agreement on Trade-Related Aspects of Intellectual Property Rights UDHR The Universal Declaration of Human Rights UGC User-generated content WIPO World Intellectual Property Organization WCT WIPO Copyright Treaty WTO World Trade Organization

1.Introduction 1.1 Background and purpose The fact that copyright law mainly focuses on the protection of author’s exclusive right without giving much attention to the users’ right explicitly affects user-generated content which is the user-based work that contains the pre-existing material from previous work and is likely to be considered an infringement according to the EU copyright law. Berne Convention provides authors to have the exclusive right to the reproduction of their work and gives too broad scope in interpretation followed by InfoSoc Directive which provides the similar provision for the exclusive right of the author. However, Berne Convention also grants the exception and limitation for the exclusive rights by providing ‘three-step test’ at least to set the limitation to the broad scope of reproduction right while InfoSoc directive has a set list of exceptions that Member States can choose as they see fit to their national law. While there are fruitful exceptions such as incidental use, parody, private use and quotation that might be the possible way out for the transformative and adaptive nature of UGC, but it seems not enough as the list is far too narrow and is not practical when it comes into play with the case due to the fact that UGC is not just an adaptation of the original work but also has its own unique nature that has to be further explored. Factors such as commercial aspect and its transformative use has to be taken into an account which requires specific exception rather than just relying on the existing ones from the Directive. Moreover, Transformative work has not been harmonized and defined in the EU and is still in the grey area unlike U.S which allows transformative work by relying on the famous ‘Fair use Doctrine’. Moreover, Users’ right has not been recognized widely and mentioned in the EU context unlike Canadian copyright system which has just reformed its law regarding user-generated content.

It is worth exploring the new approach to the UGC of Canadian Copyright Law that has just introduced its latest development on the its legal system touching upon the semi-open fair dealing exception. In addition, users’ right has been recognized and given attention broadly in the system unlike the author-based protection in the EU copyright system. The aim of this paper is to seek the possible way to give breathing space for the transformative work in EU copyright law. It will investigate various legal approaches to transformative use namely Canadian Modernization Act and its support on the users’ right touching partly upon USA fair use in order to find the best solutions to the issue at hand.

1.2 Method and Materials To start with, this thesis is using a de lege ferenda approach to the subject matter. To achieve the aforementioned purpose, this thesis will be based on various copyright law namely the EU copyright law, Thai copyright law, Canadian Copyright law and touches upon US copyright law in the scope of fair use. The approach is to investigate, examine and analysis each legal approaches for the UGC and make a comparison to find the best solution for the subject matter. Several EU case law will also be investigated and analyzed in this paper although there are not much of a case law regarding UGC currently in the EU. Regarding EU instruments, the primary source for analysis is the InfoSoc Directive as well as the international conventions and treaties such as Berne Convention and TRIPS agreement. In light of Thai instruments, Thai copyright act and the latest Amendment act will be discussed. Canadian Bill-C11 will be discussed mainly on section 29.21 accompanied by U.S. fair use of the DMCA.

1.3 Delimitations The discussion will be focused mainly on the creative work that during the process of making utilize the pre-existing copyrighted materials or borrow substantial part of the pre-existing material. It will mainly look into the process and effort that has been put into creating the new work while it will not focus on simply the adaptation of the work such as translation, minor alteration, arrangement and adjustment. This thesis will not include the whole aspect of U.S. fair use but will partly mention and discuss the differences of the doctrine and the EU three-step test. Regarding the discussion of the exception and limitation in the EU, this paper will focus on some of the exceptions such as quotation and parody exception while it will not explore the topic of private copying and its remuneration aspect. The relationship between the right holder and intermediaries and intermediaries’ liability as well as DRM will be left out of this discussion. Lastly, the contractual aspect such as licensing system, will not be given as the priority of this thesis since its main purpose is to find the breathing space for the specific exception for transformative use of UGC without having to deal with the licensing system which is only the end result.

1.4 Structure This thesis is divided into five parts, starting with part one, the background of digital era, definition of Web 2.0 and UGC. Part two will discuss about the relationship between copyright and UGC in EU context followed by part three which will discuss about the relationship between copyright and human rights in terms of freedom of expression and also partly discuss about the economic aspect of UGC and copyright. Part four will discuss about UGC and copyright law in Thailand as well as the comparison between EU copyright system towards UGC and will end the last part with the possible solution to the subject matter by discussing Canadian approach.

2. Digital era and User-generated content 2.1 Digital society and the rise of Web2.0 As we stepped into the digital era and internet world, the way of information sharing becomes easier and somewhat more convenient. Information flows fast like a speed of light as a result of the development of high speed technology. Internet allows users to give and take information freely anytime and anywhere with almost no limitation. In additional, with the arrival of Web 2.0, which is the current state of online technology that allows more interaction and collaboration between online users, communication moves forward rapidly.1 Basically, Web 2.0 provides greater collaboration among internet users than the original world wide web as it allows users to create community of their own and provides more interactive platforms. Moreover, its social nature in collaboration with “Nomadicity”2, enables users to connect from wherever they are by their smartphones, tablets and other devices.3 The foundation components of Web2.0 are the advances enabled by Ajax4 and other applications such as RSS5 that allows websites to communicate with the browser behind the scenes without human interaction and also makes it easy for the website host to stay connected with the audience in the effective

1 Ashraf Darwish, “The impact of the New Web 2.0 Technologies in Communication, Development, and Revolutions of Societies”, Journal of Advances in Information Technology, Vol. 2, No. 4, November 2011. 2 According to Macmillan Dictionary, the term ‘Nomadicity’ is the ability to access platforms and compute data from various types of devices. 3 See https://jayijai18.wordpress.com/article-3/ (last access on May 26, 2019) 4 Ajax stands for Asynchronous JavaScript and XML. It’s a type of programming made popular in 2005 by Google (with Google Suggest) which is a new way to use existing standards and creating interactive web applications. With Ajax, it provides better, faster, and more user-friendly web applications. (definition from www.3rdeye.co.uk) 5 An RSS feed is an up-to-date information or list of notifications that a website delivers to its subscribers. RSS means “rich site summary” or “really simple syndication.” (Definition from www.techopedia.com)

10 and fast way.6 The main function is its design to make information sharing possible for people in general, not only ‘professional’ users but also ‘amateur’ users. Actually the term Web 2.0 has not been so clear and precise. Tim O’Reilly, founder of O’Reilly Media has given the first logical definition of the term in 2004 as follows;

“Web 2.0 is the network as platform, spanning all connected devices; Web 2.0 application are those that make the most of the intrinsic advantages of that platform: delivering software as a continually-updated service that gets better the more people use it, consuming and remixing data from multiple sources, including individual users, while providing their own data and services in a form that allows remixing by others, creating network effects through an “architecture of participation,” and going beyond the page metaphor of Web 1.0 to deliver rich user experiences.”7

With the new model, many companies use the interaction ability of Web 2.0 as a tool for enhancing their business. For example, Amazon allows visitors to create account on their site and provide space for customer to submit reviews to boost the sales.8 From doing that, a lot of companies can provide better

service and build customer loyalty.

6 Dan J. Kim, Kwok-Bun Yue, Sharon Perkins Hall, Tracy Gates, “Global Diffusion of the Internet XV: Web 2.0 Technologies, Principles, and Applications: A conceptual Framework from Technology Push and Demand Pull Perspective”, Communications of the Association for Information Systems, Volume 24, Number 1, Article 38, 6-1-2009. 7 Tim O’Reilly and John Battelle answers the question of “What’s next for Web 2.0?” in Web Squared: Web 2.0 Five Years On in October 2009. 8 https://www.amazon.com/gp/help/customer/display.html?nodeId=201145120 (last access on May 29, 2019)

Well-known social media sites that use this Web 2.0 model are for instance, Facebook, Instagram, Flickr, Pinterest, Myspace, Reddit, Digg etc. Website Mashups is one of the applications recognized in Web 2.0 which refers to web application that combines content from variety sources.9 It is originated in the music world where two or more songs are mixed together to create a new one. The example of website mashups is for instance, Youtube, Ebay, Yahoo, etc. Recently, Youtube is considered the biggest video online platform that has over billions of users that allows users to post user-generated videos and make revenue from them. The change of this internet model can result in many ways negatively and positively. It means that information is more readily available than before. The old method of information control is dying and replaced by the new one which is quite loose. There is controversy rose from the existence of Web 2.0 which is still problematic and difficult to solve. Some critics claimed Web 2.0 makes it too easy for average person to create online content, which can impact credibility, ethics and even legality of web content.10 Andrew Keen, a British-American entrepreneur and Internet critic opposed the idea of this self-publishing and blogging and called it “digital narcissism”. He thinks the main harm is the devaluation of professionally produced content and the idealization of the amateur. He’s also against the idea of free content and prefers the idea of people having to pay for their content instead.11

9 See https://www.woodst.com/web-design-development/what-is-web-2-0-and-what-does-it- mean-for-you/ (last access on May 26, 2019) 10 See Http://whaits.techtarget.com/definition/Web-2--or-Web- Margaret Rouse, “Web 2.0” (Last access on May 8, 2019) 11 See https://www.techradar.com/news/internet/web/interview-web-2-0-critic-andrew-keen- 131068 (Magazine Team (PCAnswers), “Interview: Web 2.0 critic Andrew Keen”, September 20, 2007.) (last access on May 26, 2019)

2.2 What is User-generated content? User-generated content12 or in the simpler term ‘consumer-generated content’, basically refers to various type of information uploaded or posted by the users or unpaid contributors. It refers to videos, posts, comments, images, which are available in public for any users.13 OECD has given a definition as “i.) content made publicly available over the Internet, ii.) which reflects a certain amount of creative efforts, and iii.) which is created outside of professional routines and practices”14 UGC can come in three different forms:

1. Individual textual, audio, image, video, and multimedia productions that are distributed online through software platforms such as blogs, podcasting repositories, Flickr, Twitter, YouTube, and citizen journalism sites; 2. Software modifications or applications that are written by individuals to operate within or augment specific previously existing datasets or hardware or software platforms (e.g., iPhone applications or ‘apps’, utilities that manipulate publicly available data sets, game or virtual world modifications); and,

12 According to Techopedia, the terms “User-generated content” means any digital that is produced and shared by end users of an online service or website. This includes any content that is shared or produced by users that are members or subscribers of the service, but it is not produced by the website or service itself. User-generated content is also known as consumer- generated media(CGM) or conversational media. 13 See https://www.tintup.com/blog/user-generated-content-definition/ (last access on May 26, 2019) 14 http://www.oecd.org/internet/ieconomy/38393115.pdf (OECD. (2007). Participative Web: User-created Content. Retrieved April 18, 2016.) (last access on May 26, 2019)

3. Formal or informal consortia that collaboratively produce and distribute UGC, including open source software (OSS), such as the Linux or Apache, and wikis, such as Wikipedia.15

The term “user” can be very broad where it is not limited to professional blogger or author but also includes amateur writers, bloggers or creators. Frankly, anyone can be “user” in this term and create anything they want without any high qualifications. The term “generated” refers to the act of creating copying or uploading online material and the term “content” refers to creative work as understood in copyright law, or any expression of human creativity.16

2.3 The role of UGC in current society There are many reasons for UGC to exist. To begin with, many companies use UGC to boost their business by allowing customers to post comment or create contents on their sites. Some online fashion sites allow customers to post pictures of their products to boost the sales. In another way, it can be said that UGC is another way of the marketing strategy. By having opportunity to publish anything easily by one tap with your fingertips can do a lot without having to hire any marketers. As a result, companies can gain more audiences and attract more advertisements on their sites. The fact that the content is created by users means the content is more authentic and real to the eye of audience, moreover it brings audience together and creates their own community. According to Neilsen17, 92% of users trust user-generated video on Youtube and engage more than their traditional television. Therefore, anyone

15 Pamela J. McKenzie, Jacquelyn Burkell, Lola Wong, Caroline Whippey, Samuel E. Trosow, and Michael McNally, “User-genereated online content 1: Overview, current state and context”, Volume 17, Number 6-4 June 2012. 16 Andrea Giulia Monteleone, “User-generated-content and copyright: The European Union Approach”, Lund University. 17 Marisa Grimes, “Neilsen: Global Consumers’ trust in earned advertising grows in importance”, 04-10-2012.

14 can be famous as long as they post interesting content online and anyone can be an influencer by just creating content online without the help of the talent company anymore. Recently, Instagram just came up with new tool called “insight”18 that can monitor the the audience behavior towards individual business account. This function allows the owner of the account to keep track of audience engagement and helps encouraging more UGC post on Instagram and can somewhat predict the increase in the online content. However, UGC can be both commercial and non-commercial depends on the purpose each content serves which is the tough task to evaluate and can lead to legal complications, particularly copyright issue. The possible way to let UGC circling in our society is to find the balance between the authors rights and users’ right as much as possible. To sum up, we can’t deny the fact that UGC also important socially and economically as it encourages creativity and innovation. Imagine life without social media and interesting content as well as empowering videos, the society and economy will not be able to grow efficiently.

2.4 Defining UGC issue in EU copyright context In light of UGC nature, it is arguable that the problem of reproduction right infringement has been raised and the effective and clear solution to the problem has not been put into place yet. As a result of the unsolved copyright issue regarding the exception and limitation to the reproduction right, private ordering mechanism can get into the way of UGC such as Technological

18 See https://help.instagram.com/1533933820244654 (Instagram insights help you learn more about your followers and the people interacting with your business on Instagram. For example, you’ll find insights such as gender, age range and location. You can also see which posts and stories your audience sees and engages with the most. Insights and metrics about our account include paid activity as well. Reach, account reached, impressions, and impressions by day reflect both paid and organic activity).

Protection Mechanism (TPMs)19 including Digital Rights Management (DRM)20 software, or legal devices such as licensing agreements and End-user Licensing Agreements (EULA)21.Contractual terms22 can be put into use to restrict uses of copyrighted material preventing creators from accessing and using pre-existing materials that would be deemed to be the rightful use under some exceptions and limitations23 The method like blocking system and filtering has been put into place to deal with the infringing content online. As a result, it can be contrast to the freedom of expression. Not to mention the major barrier of Copyright laws as well as global copyright treaties including the Berne Convention, the agreement on trade related aspects of intellectual property rights(TRIPS), and the world intellectual property organization (WIPO) since transformative work based on existing work may risk copyright infringement according to the Berne Convention. However, EU does not seem to neglect the problem as the EU Commission published the communication so called “Content in the digital single market” in December 2012 with the purpose of finding the possible and efficient solutions to copyright related practices in the digital era. The commission seems to focus on licensing method and regards this method as the best solution to the digital context24 followed by the project called “Licences for Europe”25

19 Such as encryption and other mechanisms to control unauthorized copying, transmission and use of their products. 20 According to Fact sheet: Digital rights management and have to do: Technical Protection Measures, DRM technologies try to control the use, modification, and distribution of copyrighted works (such as software and multimedia content), as well as systems within devices that enforce these policies. 21 EULA is the contract between the licensor and purchaser establishing the purchaser’s right to use a software. 22 Such as Creative commons. 23http://www.oecd.org/internet/ieconomy/38393115.pdf OECD. (2007). Participative Web: User-created Content. Retrieved April 18, 2016. 24 See Brussels, 18.12.2012 COM (2012) 789 final. 25 As announced in the Communication on “Content in the Digital Single Market”, 18 December 2012 “Licences for Europe” is an initiative jointly led by Commissioners Michel Barnier (Internal Market and Services), Neelie Kroes (Digital Agenda) and Androulla

For the background, the EU has not developed ‘fair use’ doctrine like in U.S. which has been given quite a breathing space for UGC and transformative work and fair dealing has not been certain and harmonized in the EU. The only exceptions and limitations that we could see in the EU copyright legislation is in InfoSoc Directive and Berne convention. To be frank, the solution to the copyright issue of UGC is still vague and uncertain. As the definition of UGC is not yet harmonized through the European Union countries, the situation is becoming more complicated. There are several cases in EU that is still raising some questions towards the copyright protection to the authors and the exception of the transformative work created by the users. Particularly, the fact that UGC could possibly deem to be an infringement regarding Article 226 and 327 of the InfoSoc Directive due to its nature of borrowing and recreating, results in little excuse to legally exist under EU copyright law. Moreover, looking into the intermediaries’ liability, there are still issues on how to control the hosting websites, saying that in what extent the liability can go? What is the right way to deal with the copyright issue between the hosting websites and the users of the websites? Who owns the content and who will take responsibility when the infringement has occurred? Is the ISP take down system fair for users? Perhaps it is the high time for European Union to implement the specific exemptions for UGC in order to solve this issue. On the other hand, Canada has just developed a set of specific exception clause in copyright law that is suitable for UGC resolutions which can set the good

Vassiliou (Education, Culture, Multilingualism and Youth). Its main purpose is to seek to deliver rapid progress in bringing content online through practice industry-led solutions. 26 Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. 27 Article 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society.

17 example for the EU. Perhaps adding new exception clause for transformative works is another possible way to solve this ongoing issue.

3. UGC and copyright law in EU 3.1 Source of law and scope of protection To begin with, copyright in the EU is territory based which is subject to several international obligations. European Union has worked hard on harmonizing aspects of copyright between the member states and has done it with the introduction of The InfoSoc Directive.28 The Berne convention29 established a minimum standard for the protection of copyright and neighboring rights and is the first major effort towards copyright coherence. Berne convention sets out a general principle for all exceptions to copyright called the three-step test30 and it has become major norm in copyright governance. In general, The InfoSoc directive harmonizes the right of reproduction, distribution, communication of works to the public, and making works available to the public. It also regulates limitations and exceptions according to Article 5 of the Directive which follows the three-step test principle in Berne Convention. However, the adaptation right has not been harmonized yet in the EU copyright law so as the transformative works. The scope of modification, reworking and reusing of copyright work has not been harmonized and it has never been clear on the criterion and such about how much one has to prove to create new work out of pre-existing one. In light of the originality criterion, The InfoSoc Directive does not set out the basic standard which leaves uncertainty in determining the degree of creativity to make an independent works in their own

28 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. 29 Berne Convention for the Protection of Literary and Artistic Works. 30 Article 9(2) of Berne Convention.

18 right.31Moreover, the term “expression” has not been harmonized and clearly defined in the EU level.32 In terms of introducing new exceptions to copyright, the InfoSoc directive provides mandatory clause33 and an exhaustive list of non-mandatory34 exceptions, which the member states may choose to implement as they will. Interestingly, when it comes to the existing of ‘transformative uses’, we cannot really find it among the list in Article 5 of the Directive. Although there are some specific exceptions that could possibly fit and overlap with the aforementioned uses such as parody35which will be discussed further in this paper, it seems not enough to cover all the unique details that shape up transformative work.

3.2 Reproduction right in the EU Berne Convention has set out the introduction of the reproduction right in the EU, followed by the InfoSoc Directive. Regarding the extent of reproduction right within EU, it appears that the definition of the term “reproduction” is very broad.36 According to Article 9(1) of the 1971 Berne Paris Text provides: “Authors of literary and artistic works protected by this convention shall have the exclusive right of authoring and reproduction of these works, in any manner or form.”37 According to the WIPO guide to the Berne convention38, the words ‘in any manner or form’ are wide enough to cover all

31 Eric Ostlund, “Transformative European Copyright: Introducing an exception for creative transformative works into EU law”, Thesis in Intellectual property law, Autumn 2013. 32 Julien Cabay and Maxime Lambrecht, “Remix prohibited: how rigid EU copyright laws inhibit creativity”, Journal of Intellectual Property Law and Practice, 2015, Vol. 10, No. 5. 33 Article 5(1) of The InfoSoc Directive. 34 Article 5(3) of The InfoSoc Directive. 35 Article 5(3)(k) of The InfoSoc Directive. 36 Tatiana-Eleni Synodinou, Codification of European Copyright Law, Wolters Kluwer Law and Business, Information Law series, Volume 29, 2012. 37 Berne Convention, 1971 Paris Text Art.9(1). 38 See https://www.wipo.int/edocs/pubdocs/en/copyright/615/wipo_pub_615.pdf 9.2. This is self-explanatory. The words "in any manner or form" are wide enough to cover all methods

19 methods of reproduction. However, Article 9(2) also deals with the exemptions to the reproduction right where it has introduced the three-step test. But how much will be considered as the act of reproduction that may infringe the copyright? This is still debatable among Member States. It seems like Berne Convention also protects the partial reproduction of a work even though it does not appear from the actual text as UK’s attempt to clarify this matter was withdrawn at the Conference in Stockholm when it was emphasized that “all rights granted in respect of works under the convention are applicable, without this being explicitly stated, either to the whole work or to parts of it”39 In the same way, The German copyright Act defines the reproduction right as “the right to make copies of the work by whatever method and in whatever quantity.”40 However, it does not seem too hopeless as the European Court of Justice regarded the ‘originality’ as the standard for the partial reproduction in “Infopaq” case where the important pronouncements of the ECJ on originality started with this decision. The court boldly decided that in order to be a reproduction in part, the extract of the work must contain an element of the work which expresses the author’s own intellectual creation.41 As a result to this decision, it can be seen that the originality can be the big role in the assessment of the scope of reproduction right. It is worth take a deeper look at the real definition of the term “reproduction”. The term would not refer to the mere material fact of the reproduction but also to ‘the exploitation nature’ of the work based on this

of reproduction: design, engraving, lithography, offset and all other printing processes, typewriting, photocopying, xerox, mechanical or magnetic recording (discs, cassettes, magnetic tape, films, microfilms, etc.), and all other processes known or yet to be discovered. It is simply a matter of fixing the work in some material form. It clearly includes the recording of both sounds and images (see paragraph (3) of this Article). 39 Records of the intellectual property conference of Stockholm June 11 to July 14, 1967. 40 Germany, Copyright Act Art. 16(1). 41 CJEU, July 19, 2009, Infopaq International v Danske Dagblades Forening, C-5/08, 51.

20 reproduction according to Fabiani’s analysis42 where he suggested the “economic incidence” criterion and noted that it should be served as a core standard to determine the restriction of the reproduction right. Fabiani focused on the relationship between the act of reproduction, the act of exploitation and the exclusive reproduction. He pointed out the importance in weighing in the act of exploitation when determining the scope of reproduction right of the author.43 In my point of view, I support Fabiani’s analysis due to the fact that reproduction should have boundaries and should never be too broad in scope and in fact the effective way to define the scope is to bring the economic analysis into the equation to make the fairness for both sides, the authors and the users. Moreover, aligning these aspects together can bring consistency in the scope of protection of the economic rights. There was an attempt in finding the scope of reproduction in 1995 Green Paper44. The commission expressed the intention to find a proper definition of the reproduction right “in a digital environment”. In particular, it focused on the exceptions for the reproduction right and also proposed the possible exception for user-generated content. However, the commission still failed to give the definition to the reproduction right. The question still remains whether the uses of a work in an altered form may infringe the reproduction right and act against the author’s exclusive right as well as whether all kinds of adaptations will fall into the scope of reproduction.45

42 Fabiani, “Le droit de reproduction et le revision de la Convention de Berne”, 286, also see Sari Depreeuw, “The variable scope of the exclusive economic rights in copyright”, Kluwer Law international, 2014. 43 see more in Sari Depreeuw, “The variable scope of exclusive economic rights in copyright”, Kluwer Law International, 2014. 44 Green Paper Copyright and Related rights in the Information Society. 45 The recasting of copyright and related rights for the Knowledge Economy.

3.3 Adaptation and derivative work in the EU The term “adaptation” usually refers to the work that is converted into another form of expression that is not considered the simple reproduction, for example, translation of Harry Potter from English to Thai or Making of Game of Thrones series out of the novel.46 However, the transformation is part of the process in adaptation but not every transformation is adaptation. Thus, there is an overlap between transformative work and adaptation that needs to be further clarified. Also, there are no define line on the reproduction of a work and an adaptation of a work and never easy to draw one. To begin with, adaptation right has not been an important concern in the EU. Article 2(3) of the Berne Convention, Paris Text provides the protection to the derivative work in the sense that “Translation, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work”47 However, the common standard of what work is considered an adaptation is still vague and uncertain. Although the right against the translation, adaptation, arrangement and any other alteration of a computer programme have been mentioned in The E.C. Software Directive48, no general harmonization of a translation or adaptation right with regard to other categories of works has since occurred, not even in the context of the E.C. Copyright in the Information Society Directive. As regards EU copyright, the InfoSoc Directive does not contain any reference to the right of adaptation. In late 2013, Ireland has released the fascinating Modernizing Copyright Report by Irish Review Committee49 which focused on exceptions and limitations for innovation. The report recommended introducing exception and also U.S. fair use exception and

46 Copinger & Skine James on Copyright, 17th Edition, 2nd Supplement. 47 Berne Convention. 1971 Paris Text Art. 12. 48 Article 4(1)(b) of E.C. Softward Directive. See also Canada, Copyright Act s.30.6(a) 49 The Irish Copyright Review Committee.

22 mentioned the importance of adaptations and transformative work. According to the report, the Commission writes;

“Contrary to the reproduction right and the communication to the public/making available right, there is no express rule with respect to adaptations in the InfoSoc Directive (unlike the Software and in the Database Directive). However, the broad manner in which the reproduction right in Article 2 of that Directive is formulated and the CJEU’s jurisprudence on the scope of the reproduction right notable in Infopaq and Eva-Maria Painer seem to cover adaptations which give rise to a further reproduction within the meaning of Article 2. The pending case Allposters50 will shed further light on the scope of Article 2.”51

The question whether derivative work is an infringing adaption of the first work and in what extent, creative elements from the first work have been appropriated into the second work are never-ending in EU. There are significant differences in national laws. For instance, France and Netherlands 52 still consider adaptations and other transformations as forms of reproductions while Italy, Germany and the UK see adaptation as a separate right.53 Germany has the legal term “inner distance” using to evaluate the possibility of transformative infringing in parody exception,54saying that, if the ‘distance’

50 C-419/13 Judgment of the Court (Fourth Chamber) of 22 January 2015 Art & Allposters International BV v Stichting Pictoright. 51 Page 99 of Draft IA. 52 France, Intellectual Property Code Arts. L 122-1, 122-4; Netherlands, Copyright Act Art. 13. 53 Julien Cabay and Maxime Lambrecht, “Remix prohibited – How rigid EU copyright laws inhibit creativity”, Forthcoming in Journal of Intellectual Property Law and Practice, 2015. 54 See Germany, Copyright Act Art.24; Germany, “Lara’s Daughter,” Federal Supreme Court. April 29,1999, Case No. IZR 65/96, 31 (Unauthorized sequel to Dr. Zhivago deemed unauthorized adaption for lack of sufficient ‘inner distance’).

23 between first and second work is far enough, no adaptation will be found and that means no infringement will be found either. The matter of “inner distance” parody exception in Germany will be discussed further in this paper. In conclusion the adaptation has not been expressly and generally harmonized for the subject-matter other than computer programs and databases. Although Member States are free to legislate the exceptions but the scope of three-step test is too limited and narrow to cover the adaptation of the work.

3.4 Transformative work within the EU Transformative work usually derives from the pre-existing idea and undeniably borrows the existing material to create new work. It usually refers to the mash-up, remix work that combines together to create new work. Transformative work in fact exists in U.S. copyright system under Fair use exception.55 The fact that UGC is created from pre-existing materials, contributes a high chance of infringement implications and the grey area on how to protect UGC creators and originator’s work under copyright limitations and exceptions in the EU, in particular in the scope of three-step test.56 We have seen transformative work for a long time from the history, even Shakespears, Picasso and other artists in the past. It is the way of creating new work and the way art is developed for a long time. In the past, a small amount of idea borrowing is considered acceptable as opposed to the present. First of all, transformative uses touch on the right of reproduction regarding the InfoSoc Directive. Since the scope of the right of reproduction in EU law is very wide as it covers any “direct and indirect, temporary or permanent reproduction of a work by any means and in any form, in whole or in part”57 makes it nearly

55 Section 107 of the US Copyright Act of 1976. 56 Julien Cabay and Maxime Lambrecht, “Remix prohibited – How rigid EU copyright laws inhibit creativity”, Forthcoming in Journal of Intellectual Property Law and Practice, 2015. 57 Article 2 of the InfoSoc Directive.

24 impossible for transformative work to survive. It is a good start that at least we can define the scope of right of ‘reproduction’ with the scope of ‘originality’ according to Infopaq decision although it does not appear as the clear criterion.58 French and Belgian case law are consistent with the CJEU’s interpretation of the right of reproduction and the scope of protection correspond with that of originality.59 In light of originality criterion in the UK copyright law, the work is considered original when skill, labor, judgement and effort has been put to create the piece of work. Thus, the infringement may occur when ‘the work as a whole or any substantial part of it’ has been copied while the meaning of substantial is defined on case-by case basis.60 The ‘parody exception’ appears to provide the most important breathing space within copyright law with regard to transformative uses. EU law provides an optional exception for the “use for the purpose of caricature, parody or pastiche”61 in the InfoSoc Directive. Parody exception was the main matter in the Deckmyn case.62 It is the case of the drawing produced and distributed by a member of Vlamms belang political party in Belgium that happened to resemble the cover page of a copyrighted comic book. The court retained two essential characteristics of a parody; “first, to evoke an existing work while being noticeably different from it, and secondly, to constitute an expression of humor or mockery” instead of applying a number of conditions such as the parody should relate to the original work itself or mention the source of the parodied

58 CJEU, July 19, 2009, Infopaq International v Danske Dagblades Forening, C-5/08, 51. 59 Julien Cabay and Maxime Lambrecht, “Remix prohibited – How rigid EU copyright laws inhibit creativity”, Forthcoming in Journal of Intellectual Property Law and Practice, 2015. 60 See https://www.copyrightuser.org/understand/rights-permissions/protecting/(last access on May 26, 2019) 61 Article 5(3)(k) of The InfoSoc Directive. 62 C-201/13, 3 September 2014 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others.

25 work.63 (Julien: 2015) In a way, the Deckmyn ruling could be a good role model for the work in the field of transformative use that might be suitable for UGC. Even though the Deckmyn case provided more relaxing parody exception for transformative use but its scope remains quite narrow for the wide scope of UGC work. In particular, UGC work does not have to always contain humor and mockery which might not fit the scope of parody exception. Regarding the flexibility of exception and limitation interpretation, the CJEU adhered to the traditional dogma of a strict interpretation of copyright limitations in Infopaq. The court pointed out that, according to established case law;

“The provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly […]. This holds true for the exemption provided for in Article 5(1) of Directive 2001/29, which is a derogation from the general principle established but that directive, namely the requirement of authorization from the right holder for any reproduction of a protected work.”64

However, there are some court decisions that are quite flexible and safeguarded the effectiveness of the limitations and also tried to strike the balance between the copyright protection and freedom of expression which will be discussed further in this paper in the human rights aspect. From these rulings, it appears that EU member states may have the breathing space for copyright limitations that support transformative use. Perhaps, transformative use can have its own place if freedom of expression comes into play to weigh in the

63 The court in Painer ruled similarly that mention of the source was not a condition for the exception for security purposes, as no such condition exists in the wording of the directive December 1,2011, Eva-Maria Painer v Standard VerlagsGmbH and others, C-145/10. 64 CJEU, 16 July 2009, case C-5/08, Infopaq International/Danske Dagblades Forening, para. 56-57.

26 decision in court and at the same time the court interpret the provision in the more flexible way. Relying on Article 11 of the EU Charter of fundamental rights and Article 10 of the European Convention on Human Rights, the CJEU could interpret the ‘quotation right’ and the ‘parody exemption’ less strictly. Moreover, from the Painer and the Deckmyn decision, the court thus referred to quotations and parodies as ‘user rights’ rather than mere ‘user interests’(Julian:2015). To sum up, if we compare copyright laws from various jurisdiction on the issue of flexibility and freedom to create, current EU laws are clearly among the most restrictive. However, it is not that all hope is gone since there is still possible way of applying external exception such as freedom of expression and information which can benefit UGC broadly. In my point of view, the nature of transformative work is different from adaptation work since it has its own unique character which can convert the former work into new insights and understandings. Thus, the standard and criteria should not be the same as adaptation right but instead should be set out separately and specifically.

3.5 Exceptions and limitations in EU copyright law To start with, some may understand the terms ‘exception and limitation’ as the same meaning but actually this two terms are often used interchangeably by established national law, international Convention and EU Directives, though they are not identical.65 The limits are more of the tool to determine the scope of protection while the exceptions can be seen as restriction. One scholar has put it this way, “limitations represent a ‘pound of copyright’s fair flesh’. Take them out and one risks killing copyright, by severing a vital link between authors and society.”66

65 On the legal nature of exceptions and limitations, see Guibault (2002), 21-11-; Sirinelli(1999), 29. 66 J.H. Spoor, “General Aspects of Exceptions and Limitations to Copyright” in L. Baulch M. Dr.Lucie Guibault, The nature and scope of limitations and exceptions to copyright and

Article 5 of the InfoSoc Directive enumerates exhaustively the types of limitations that member states may implement in national law. The list contains a single mandatory limitation permitting transient copying incidental to digital communications, including caching and browsing67, and a list of 21 optional limitations, from which member states may select68. All limitations implemented at the national level must comply with the Berne convention three- step test.69 Article 5 of the copyright Directive sets up very diverse exceptions to the reproduction right defined in article 2. It provides non-mandatory exceptions for the Member States to pick as they see fit for their national legislation. However, these lists include only few options that could be interesting in relation to the UGC, which are the exceptions for ‘quotations, incidental use, caricature parody and pastiche.’ Unfortunately, it is particularly prohibited to introduce new limitations and exceptions to the reproduction under Article 5 of the copyright Directive. The three-step test has been introduced in Article 5(5) to set the standard for the whole exceptions while it is the matter of interpretation when it comes to the wording of the three-step test. Actually, case law on the interpretation of Article 5 and the three-step test is still rather limited. It appeared that, the exception of Article 5, as repeatedly confirmed by the CJEU, must be interpreted narrowly and strictly as derogations from the exclusive rights granted under the directives according to the Infopaq case.70 Moreover, the fact that Member States are not able to create new limitations which are not part of the lists can lead to the deadlock and zero flexibility for the digital age.

neighbouring rights with regard to general interest missions for the transmission of knowledge: Prospects for their adaptation to the digital environment”, 2003. 67 Art 5(1) of The InfoSoc Directive. 68 Art 5(2), (3) of The InfoSoc Directive . 69 Art 5(5) of The InfoSoc Directive, Article 9(2) of Berne Convention. 70 A. Kur/T. Dreier, European Intellectual Property Law: Text, Cases and Materials, Edward Elgar, Cheltenham, Northampton, 2013, p. 302, see Judgment in C-5/08, Infopaq International A/S v Danske Dagblades Forening (Infopaq I), EU:C:2009:465, paras. 56-57 and Judgment in FAPL EU:C:2011:631, para 162.

However, there happens to be a case in French where the court did not merely rely on exception and limitation in considering the infringement case that involves the reproduction right. Regarding the French case, Ashby v. France case71, it is the case where the court did not rule relying merely on the narrowly interpreted exceptions in the copyright law but weighed in an external human rights perspective to justify the copyright enforcement. It is the case between Robert Ashby Donald, Marcio Madeira Moraes and Olivier Claisse, three fashion photographers and France where there was convicted for copyright infringement following the publication of pictures on the internet site Viewfinder of theirs. They were claimed to have posted the photographs of the fashion show in Paris in 2003 on their website without the permission of the fashion houses and ordered to pay fines to the French design clothing Federation and five fashion houses. Although the applicants could not rely on the exception to the reproduction of works exclusively for news reporting and information purposes in French Law72, the court applied Article 10 (freedom of expression and information) of the European Convention to the case and added that “while this is subject to exceptions, these exceptions must be construed strictly, and the need for any restrictions must be established convincingly.”73 In light of the quotation exception, Painer case has set the good example for the flexibility of the quotation exception. The court ruled in favor of the publication that published the photographs without the owner consent and without the name of Painer, the photographer by reasoned that the name was not

71 Judgment by the European Court of Human Rights (Fifth Section), case Ashby Donald and others v. France, Appl. nr. 36769/08 of 10 January 2013. 72 Article 122-5 No 9 of the French Code de la Propriété Intellectuele, “9° La reproduction ou la représentation, intégrale ou partielle, d'une oeuvre d'art graphique, plastique ou architecturale, par voie de presse écrite, audiovisuelle ou en ligne, dans un but exclusif d'information immédiate et en relation directe avec cette dernière, sous réserve d'indiquer clairement le nom de l'auteur”. 73 “La liberté d’expression (..) telle que la consacre l’article 10, (..) est assortie d’exceptions qui appellent toutefois une interprétation étroite, et le besoin de la restreindre doit se trouver établi de manière convaincante” (§ 38).

29 necessary to be stated if the author’s name was not indicated lawfully by the national security authorities in their investigations, the indication of their source is required but not necessary the name of the author. In this case, the court also tried to strike the ‘fair balance’ between the author’s interest and the publishers’ right to freedom of expression which result in the flexible interpretation of the exception regarding Article 5(3)(d). Meanwhile, Germany has the ‘free adaptation’74 or ‘free utilization’ rule and the Netherlands has “new work’ exemption which can serve as the extra breathing space to the UGC.75 In general, German copyright law does not provide the Parody exception but it disguises in the adaptation right under section 2376 of the Germany Copyright law. This doctrine mainly focuses on the transformative nature of the work. 77 The tradition interpretation relies on the similarities between the old and the new work not the differences. Thus, parody will not be considered infringement if it passes the ‘free use’ criteria in German copyright law. (Dinusha:2013) Professor Eugen Ulmer stated as follows;

“Any later work that takes, and clearly copies, the essential aspects or traits of a prior work is subject to copyright in that prior work. The doctrine of free utilization represents a corollary: No infringement is to be

74 The doctrine of frie Benutzung. Article 24 of Urheberrechtsgesetz 1965. “24(1) – An independent work created by free use of the work of another person may be published and exploited without the consent of the author of the used work”. 75 Bernt Hugenholtz, Martin R.F. Senftleben, “Fair Use in European. In search of Flexibilities”, Amsterdam, November 2011. 76 Section 23 “Adaptations or other transformations of a work may be published or exploited only with the consent of the author of the adapted or transformed work. In the case of cinematographic adaptations of a work, of the execution of plans and sketches for a work of fine art, or of copies of an architectural work, the author’s consent shall be required for the making of such adaptation or transformation”. 77 Dinusha Mendis and Martin Kretschmer, “The Treatment of Parodies under Copyright Law in Seven Jurisdictions: A comparative Review of the Underlying Principles”, Parody and Pastiche. Study 2, January 2013.

found if these essential aspects or traits are sufficiently attenuated, or faded away, within the later work.”78

Moreover, he also mentioned that literary and artistic evaluation has to be taken to an account when applying the doctrine. However, to what extent the work used from the previous use will be deem as a new independent work is still unclear. Regarding to several German cases namely, Disney-Parodie (1971)79, Asterix case(1993)80, Gies-Adler (2003)81, the court more likely to interpreted ‘free utilization’ together with constitutional guarantees such as freedom of expression, freedom of art, science, research and education.82

3.5.1 Three-step test Perhaps the three-step test can clarify the relation between the ‘reproduction right’ and ‘exploitation of the work’, similarly to its role in the Berne Convention. The three-step test was first established in relation to the exclusive right of reproduction under Article 9(2) of the Berne Convention, it states that:

“Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound and visual recordings - (1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. (2)

78 See EUGEN ULMER, URHEBER- UND VERLAGSRECHT 265-78 passim (3d ed. 1980). See also Paul Edward Geller, “A German Approach to Fair Use: Test cases for TRIPS criteria for copyright limitations?”, Journal of the copyright Society of the USA – Vol. 57 (2010). 79 BGH GRUR 1971, 588. 80 BGH, March 11, 1993. 81 Gies-Adler BGH, March 20, 2003 (I ZR 117/00). 82 Dinusha Mendis and Martin Kretschmer, “The Treatment of Parodies under Copyright Law in Seven Jurisdictions: A comparative Review of the Underlying Principles”, Parody and Pastiche. Study 2, January 2013.

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.”83

The three-step test was also invoked to justify the scope of protection of the reproduction in a digital surrounding. The major purpose is to safeguard the exploitation of the work by means of reproductions which was stated from the start, during the preparation of Stockholm conference.84 As an interface between authors’ exclusive right and privileged uses, three-step test would make it possible to approach the core of copyright’s balance in stages.85 Martin Senftleben comments that the international three-step test is ‘an essential, flexible element that allows national law makers to satisfy domestic social, cultural and economic needs’.86 The problematic part of the three-step test is the words ‘special cases’ which appears to limit and narrow down the scope of exception and limitation in national legislation. Moreover, it is not certain on how to implement this test in the national level since the interpretation can be vary among the member states. In its Green Paper87 on Copyright in the Knowledge economy, the commission noticed that transformative uses have to pass the three-step test in order to be considered as original work which usually hard because usually the

83 Article 9(2) of the Berne Convention. 84 Sari Depreeuw, “The variable scope of the exclusive economic rights in copyright”, Kluwer Law international, 2014. 85 Senftleben, “Copyright, Limitations and the Three-step test”, 132. 86 M.Senftleben, “The international Three-step test. A Model Provision for EC Fair use Legisltion”, supra 67. 87 See Green Paper on Copyright in the Knowledge Economy (2008).

32 majority of transformative use is not considered ‘a special case’ allowed in the InfoSoc Directive.88 Apart from the three-step test, there seems to be another interesting option for the exception which appears in the broad language as “fair practice” Regarding Article 10.2 of the Berne Convention, reads as follows;

“It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.”

It appears that this provision has set the broad exception for the users and mentioned the term ‘fair practice’ which could be interpreted in the manner that benefits the users. Overall, it seems that the three-step test is understood as a mean to restrict the application of the exceptions, not as a direct principle for the understanding of reproduction right. The close connection between the reproduction right and the three step test has disappeared in the InfoSoc Directive, which focuses on the exhaustively listed exceptions and limitations in Article 5.89 By interpreting the criteria of the three-step test as open-ended factors, and by recognizing that such criteria equally allow for the introduction and broadening of limitations, Article5(5) could be a much better tool for balancing interests of users and right owners. Moreover, it is interesting to explore the possibility of extending the interpretation of the three-step test to

88 Eric Ostlund, “Transformative European Copyright- Introducing an Exception for creative Transformative Works into EU Law”, IMC Paper 2014/3 (May 2014).

33 extent the scope of exception and limitation that might be benefit for the transformative work.

3.5.2 How about implementing U.S. Fair use? In light of U.S. copyright system, the exception and limitation to the exclusive right comes in the form of “fair use”. The statutory framework is Section 107 of the copyright Act, which requires the court to consider a least four factors: (a) the purpose and character of unauthorized use; (b) the nature of the protected work; (c) the amount of the protected work used compared to the whole protected work; and (d) the impact of the use on the market of the protected work.90 Some may see Fair use doctrine as the best solution for transformative work since its priority is the fairness and its scope of interpretation is very broad. However, if we consider the background of U.S. legal system, we can see that the task of combining fair use doctrine in to Three-step test is quite a hard one. To begin with, U.S. system has adopted the English common law where the court has the high power in ruling and interpreting the legislation. Due to the fact that USA legal system is based on case law, the court rules based upon the interpretation that fit the social and culture development. That is the reason why the court needs to often adjust the yardstick to be able to match the changeable circumstances and that can lead to the continuously changing of U.S law, unlike the EU code system that relies heavily on codes and words. It leads to why some scholars do not agree with the idea of adopting USA fair use into the European Union due to the fact that the USA fair use test is based on decades of jurisprudence and is a court made law that was subsequently codified in the US

90 U.S.C. 107 (1992).

Copyright Act and since then has been subject to further jurisprudence. Therefore, it is not readily adaptable to the legal framework in Europe.91

3.6 New provision in Directive on Copyright in the Digital Single Market Just recently, The European Parliament has given final approval to the Copyright Directive92, a controversial legislation designed to make the copyright law compatible with the digital era but ended up causing more conflict among internet users. The main concern of this new provision is the liability of the intermediaries such as the hosting websites. It resulted in the liability of the internet intermediaries such as Youtube and Facebook, saying that these companies will be responsible for checking all uploaded content for copyrighted material regarding Article 1393. Basically, if a user uploads a piece of content that infringes copyright, the platform is at risk. The article directs member states to consider the size of the provider, the amount of content uploaded, and the effectiveness of the measures imposed ‘in light of technological developments’ such as web filter technology. However, uploading to non-commercial sites like Wikipedia will be exempted.94 As a result, the change has caused the social uproar. One of the biggest tech guy, Jimmy Wales, the founder of Wikipedia made an unpleasant statement on his Twitter account:

“You, the internet user, have lost a huge battle today in Internet parliament. The free and open internet is being quickly handed over to

91 Ansgar Ohly, “Common Principles of European Intellectual Property Law”, 2012. Jean- Luc Piotraut, “Limitations and Exceptions: Towards a European “Fair Use” Doctrine?”. Igor B. Nestoruk, “Common Principles of European Intellectual Property Law: a Polish Perspective”. 92 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC. 93 Now article 17 of the Directive. 94 See https://www.consilium.europa.eu/media/35373/st09134-en18.pdf “proposal for a directive on copyright in the Digital Single Market”, 25 May 2018. P. 26.

corporate giants at the expense of ordinary people. This is not about helping artists, it I about empowering monopolistic practices.”95

Some critics suggested that this new rule could result in the use of upload filters, which could potential end up preventing users from uploading images which fall under fair use and hinder the users’ freedom of expression. There were even hashtag campaign on Youtube and Twitter called #SaveYourInternet96 which contains reactions of people towards the change of law. On October 22, Youtube CEO Susan Wojcicki published a blogpost warning against the impact of the Directive. She wrote:

“Article 13 as written threatens to shut down the ability of millions of people-from creators like you to everyday users- to upload content to platforms like Youtube….And, if implemented as proposed, Article 13 threatens hundreds of thousands of jobs, European creators, businesses, artists and everyone they employ,”97

However, memes are safe from this new legislation, at least that so they said. The EU announced that memes, along with GIFS will be shielded from the directive as they will fall under exemptions provisions for quotation, criticism, review, caricature, parody or pastiche. This state of law seems to act against the users’ right and support the intermediaries side. In my point of view, intermediaries should not be given privilege and receive specific protection but instead users’ right should be emphasized. The fact that intermediaries such as

95 See Https://twitter.com/jimmy_wales/status/1110517366365044736 (Last access on May 7,2019) 96 See https://twitter.com/hashtag/safeyourinternet?lang=en(Last access on May 7,2019) 97see https://youtube-creators.googleblog.com/2018/10/a-final-update-on-our-priorities- for.html (Last access on May 6,2019)

36 web hosting usually gain revenues from its website, the liability to the contents posted on their sites should be put on their shoulders not users’.

4. Copyright and human rights 4.1 Freedom of expression To start with, copyright and the right to freedom of expression both constitute fundamental rights in the European. European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and also the Charter of Fundamental Rights for the European Union (EU Charter) are two main focuses in this subject matter. The discussion is always about to what extent constitutional provision on ‘freedom of expression’ can have an impact on the outcome in cases concerning copyright infringement and in what extent it can impact the copyright legislation regarding UGC in the future. Basically, copyright gives the author personal right to decide what to do with their work. The EU Charter considers the copyright and other intellectual property rights as ‘fundamental’ as Article 17(2) of the EU Charter states that ‘intellectual property shall be protected’.98 In contrast, copyright is not acknowledged as the human right but instead is widely interpreted in Article 199 of the First Protocol to the ECHR as well as from Article 8100 which protects private life or family life101 Article 11(1) of the EU Charter declares that, “Everyone has the right to freedom of expression. This shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. 102 While Article 10 of the ECHR

98 Article 17(2) of the EU Charter. 99 Article 1 of the First Protocol to the EUHR, “protection of Property”. 100 Article 8 of the First protocol to the EUHR, “Protection of life”. 101 Geiger(2009), p.32-33 and Rosen, Copyright and freedom of expression in Sweden, p. 360. 102 Article 11 of the EU Charter.

37 provides the right to freedom of expression and information which the protection offered shall be interpreted in a broadly according to the ECtHR.103 The fact that both copyright and freedom of expression are fundamental rights, striking balance between the two is always a hard work. One can say that copyright enhance freedom of expression in a way that it encourages people to express their ideas. On the other hand, some may find copyrights hindering the freedom to create and produce new work which leads to the conflict between two rights. As Article 11 of EU Charter is the apparent example to show the clashes between the two rights as it assures that everyone has the freedom to hold opinions and to receive ideas. In other words, it seems inevitable that a copyright holder’s exclusive right to certain expressions will prevent other people from expressing themselves the same way.104

4.2 Relationship between freedom of expression and UGC Take a look at the relationship between UGC and freedom of expression, it seems like nowadays anyone can express their ideas and opinions freely through the internet platform more than in the past. UGC is considered the new medium in our society that can express our creativity without having to be a professional.105 Users express their creativity freely knowing it is in the broad scope in their fundamental rights. There are some recent cases in EU court that has applied the provisions regarding freedom of expression to balance with the

103 Toby Mendel, “A guide to the interpretation and meaning of Article 10 of the European Convention on Human Rights”,Council of Eutope Publishing Editions du Conseil de l’Europe, “Freedom of expression in Europe”, Human rights files, No.18. see also David Henningsson, “Copyright and freedom of Expression in Sweden and the European Union: The conflict between two fundamental rights in the information society”, Graduate Thesis, Master of Laws programme of faculty of law Lund University, Autumn 2012. 104 Rosen Freedom of expression in lineage with authors’ right p.1. See also Angelopoulos s.328. 105 David Henningsson, “Copyright and freedom of Expression in Sweden and the European Union: The conflict between two fundamental rights in the information society”, Graduate Thesis, Master of Laws programme of faculty of law Lund University, Autumn 2012.

38 strict rules of copyright law. For example, In Germania 3, Heiner Muller wrote the play ‘Germania 3 Gespenster am toten Mann’ that contained the substantive parts of Bertolt Brecht work just to discuss his political view. He is claimed to violate the copyright right of Bertolt and failed to meet the German copyright exception to the quotation right. In the case at hand, the Court ruled, the commercial interests of the copyright owner should give way to the user’s interest in providing artistic commentary. In this case, the court assured freedom of art and ruled that the quotation right deserves broad application with respect to artistic work.106The court considered that copyright limitations should be construed in the light of freedom of artistic expression.107 The court applied the lesson of Germania3 in The Gies-Adler Case108 where in this case it is the issue with political caricature. The court opinioned that statutory law had to be construed in conformity with the constitution and freedom of expression should be guaranteed in this case.109 Austria case, Medienprofessor case110 is another example that freedom of expression prevailed over copyright. In Promusicae111 case, the court emphasized that fair balance has to be struck between fundamental rights and that the rights between copyright holders and rights of others such as intermediaries and users have to be equally balanced.112 It is worthy take a look at the private ordering system happening commonly in the digital world right now such as ISP take down system, filtering system and DRM. With the new EU provision on the online filtering system for the hosting websites, it is undeniably to assume that there might be

106 Germania 3 “Gespenster am toten mann”, Federal Constitutional Court, June 29, 2000, [2000] . 107 Article 5(3) of German Basic Law. 108 BGH Gies-Adler (File IZR 117/00). 109 Paul Edward Geller, “A German Approach to fair use: Test cases for TRIPS criteria for copyright limitations?”, Journal of the Copyright Society of the USA- Vol.57 (2010). 110 Medienprofessor, the Supreme Court of Autria, 12 June 2001, 33 IIC 994 (2002). 111 C-275/06 Promusicae, paragraph 62-68. 112 See Leva Kisieliute, “A fair balance between intellectual property rights and other fundamental rights?”, Faculty of Law Lund University, Spring 2012.

39 some irritation to the freedom of expression. In Scarlet extended case113, the court also declared that the filtering system might also infringe the fundamental rights of the people whom are using these services. Not to mention this important case involving with UGC particularly. SABAM case114 is considered a win for fundamental freedoms as the court underlined the importance of an open and free internet and the respect of freedom of expression and freedom of communication. The CJEU ruled that “a social network cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work”. The Court set out the standard that copyright-protection also had to be balanced against the users’ right to protection of personal data and their freedom to receive or impart information.115 Moreover, according to Sanfeld Jacobsen and Salung Petersen, they argued that “freedom of expression values are more likely to prevail of the sought injunction is likely to affect other persons than the actual infringers or when the measure will hinder a broad circle of people from accessing or spreading significant information of public concern.”116 Moreover, some legal scholars such as Hugenholtz and Sentfleben have suggested the more flexible copyright system that promotes freedom of expression aspects. Geiger stresses that by using fundamental rights as the boundary of copyright, legislators and judges can rebalance the matter. 117 However, as is obvious from the discussion above, further guidance on the proper balance between copyright and freedom of expression has to be

113 C-70/10 Scarlet Extended paragraphs 45-50. 114 C-360/10 SABAM v Netlog paragraphs 43-48. 115David Henningsson, “Copyright and Freedom of Expression in Sweden and the European Union”, Faculty of Law Lund University, Autumn 2012. 116 Sandfeld Jacobsen & Salung Petersen p. 179-180. See also David Henningsson, “Copyright and Freedom of Expression in Sweden and the European Union”, Faculty of Law Lund University, Autumn 2012. 117 Geiger(2009) p. 37-4-, 48-49, (2007) p. 43-44 and (2006) p. 406. See also David Henningsson, “Copyright and Freedom of Expression in Sweden and the European Union”, Faculty of Law Lund University, Autumn 2012.

40 indicated further. While fundamental right seems like good way to balance both users and authors’ right, but it is still insufficient for the broad scope of UGC in the internet world which indeed needs more precise and certain provision to cope with.

5.Economic aspect and copyright law in the EU 5.1 Tragedy of common doctrine The term “tragedy of the commons” is attributed to Garrett Hardin118 in 1968 and is often described in the context of an 18th century village bordered by a grassy common, where the locals rely on the wool trade for their income. It is the situation where anyone can own the resource as much as they want because the resource is common. The more resource they gain the more benefit they can get which cause market deficiency.119 Looking at two sides of the coins regarding the copyright perspective, both can cause a so call ‘market failures’, saying that, it can lead to the blockage of innovations and ideas if there are too many restrictions in copyright law where author’s right is protected too much. Moreover, it can lead to the market monopoly. On the other hand, it can also be a tragedy if everyone gets to use everyone’s ideas while no IP protection has been put into place, the benefits of the investment will be diffuse.120 Unlike the Land which is a tangible property, information can’t be overused. However, it can be underused. The notion of anti-commons as developed by Michael Heller may clarify this point. Heller’s theory of anti- commons property adds another dimension to the analysis of propertization by considering the organizational function of property rights. “An anti-commons

118 Hardin, G. (1968) The tragedy of the commons. Science 162(3859):1243–1248. 119 Michael Reda, “Intellectual Property Office blog: The tragedy of the commons”, Gov.uk, 10 January,2014. 120 Niva Elkin-Koren and Eli M. Salzberger, “The law and Economics of Intellectual Property in the Digital Age; the limits of analysis”, 2013.

41 regime is defined as a property regime in which multiple owners hold effective rights of exclusion in a scarce resource”121 The anti-commons analysis is related to the emergence of the new DRMs or digital private ordering occurring now. In contrary to the tragedy of commons, the tragedy of the anti-commons points to the same sort of tragedy when the common resources are fully privatized. (Niva:2013) In a way, the idea of commons is an alternative way of solving the online problem since it opens opportunity for the creators and the users. Commons refers to the place where public holds rights to its uses, and no one can have the monopoly over anything. The idea of commons can lead into the open source communities such as the new online licensing system called “The creative commons”122 which is quite popular among photographers. However, everything needs to be limited in order to be under control. Too many things in common can lead to no identity at all as Garrett Hardin said “Freedom in a commons brings ruin to all”.(Hardin:1968)123 However, information and data is not the same in Hardin’s perspective since it is not eroded upon use but instead, its utility, like goodwill, actually grows with its use. Thus, it is high time for us to look into another perspective due to the fact that the nature of intellectual property and property in general are totally different and require different approach to craft the restrictions.

121 Heller 1998:668 see also Niva Elkin-Koren and Eli M. Salzberger, “The law and Economics of Intellectual Property in the Digital Age; the limits of analysis”, 2013. 122 See https://creativecommons.org/ 123 Gabriella Ferrarezi Brunazo, “Urban and traditional commons: specification of both concepts”, January, 2017.

6.User-generated content and copyright law in Thailand 6.1 UGC phenomena in Thailand Currently, Thailand has become more and more digital based industry since the ecommerce business is a trend among new generations. The overall mobile and internet users around the world has risen more and more each year. According to We are social124, of the 7,593 billion population in the world, 4,021 billion people are internet users and 3,196 billion people are social media users. Internet users has risen 7% since January 2017 and social media users has risen 13% since January 2017 and that equals about 362 million people. Thailand ranks in the world’s top 10 for social media usage, with video becoming more popular and entertainment the topic most talked about on social media. Actually, Thailand ranked eighth in number of Facebook users, with India, the US and Indonesia taking the top three. It appears that Facebook is the number one social network across the world and Youtube has come the second place. For Thailand, it is considered to be a developing country and just recently improved on its digital development. Now digital marketing and ecommerce is a trend in Thailand. People are interested in buying products online since it is very convenient and fast. Post offices in Thailand have been working very hard the past few years due to the high amount of packages need to be delivered. Facebook and Instagram stores are very common and popular among new generations or what we call millennials. Most users use social media to boost their business by creating platform where customers can share their ideas and reviews. Digital advertisement is considered a huge thing in Thailand right now with many competitors trying to win the market. The biggest digital ad spender in the

124 See https://my-thai.org/digital-southeast-asia-thailand-2018/ (Last access on May 15, 2019)

43 country is the skincare industry, with average of 1,089 million Baht.125 These brand usually host the websites that allows users to create beauty and cosmetic content for women. The content may include stories, pictures as well as creative videos on the hosting page or on Youtube.

6.2 Thai copyright system To start with, Thailand is a civil law jurisdiction. The principal source of law relating to copyright is the Copyright Act BE 2537126 as amended in 2015 by No. 2 BE 2558127 and No.3 BE 2558128. Thailand is also a party to several international agreements on copyrights, including WIPO, Berne Convention, WTO Agreement on Trade-Related Aspects of Intellectual Property Rights 1994, Paris Convention for the Protection of industrial Property 1883 (Paris Convention). Copyright infringement according to the Act can occur by the act of copying, modifying, reproduction, adaptation, communication to the public, renting out an original or a copy, or publication by a person who is not the copyright owner. In contrary to EU copyright system, Thai Copyright law recognizes moral right or the author right129, saying that, “the author of the work can identify himself as the author and prohibit the assignee or any person from distorting, shortening, adapting or doing anything against the work to the extent that such act would cause damage to the reputation or dignity of the author”. Thailand has recently reformed its Copyright Act, Thai Copyright Act (No.2) B.E. 2558(2015). With the rise of digital world and to boost digital economy, the technology undeniably drives the need to transfer adapt reproduce information

125 See https://www.marketingignite.com/2018-digital-marketing-trends-in-thailand-what- every-business-needs-to-know/ (Last access on May 15, 2019) 126 The Copyright Act BE 2537 (1994). 127 The Copyright Act (No. 2) B.E. 2558 (2015). 128 The Copyright Act (NO.3), B.E. 2558 (2015). 129 Section 18 of Copyright Act B.E. 2537 (1994) by Department of Intellectual Property, Ministry of Commerce.

44 faster than before. The aim of the amendment is to cope with the change and make the copyright law applicable for the upcoming digital development by adjusting and add more penalty to protecting the right of the copyright owners. For the liability of intermediaries, the former copyright Act did not contain requirements for ISPs to help copyright holders in protecting their rights against online infringers. Moreover, it contained no specific procedures for copyright holders to obtain such assistance from ISPs. To address the deficiencies in the Thai copyright Act, the Copyright Act (No.2) B.E. 2558(2015) added Section 32/3, giving copyright holders recourse to petition competent courts for injunctions requiring ISPs, though whose services the alleged infringement occurred, to remove infringing content. According to Section 32/3, the law defined “provider” as “A person who provides services to others regarding the provision of access to the internet, or any other connectivity through a computer system, whether such services are provided in their own name, or in the name or for the benefit of other persons.” And/or “A person who provides computer data storage services for the benefit of other persons”130 This broad definition encompasses most forms of ISPs. This amendment is similar to the Digital Millennium Copyright Act (DMCA)131, a United States copyright law that implements two 1996 treaties of the world intellectual property organization (WIPO) and also some parts of EU Directive 2000/31/EC.132

130 Section 32/3 of Copyright Act B.E. 2537 (1994) by Department of Intellectual Property, Ministry of Commerce. 131 17 U.S. Code § 512. Limitations on liability relating to material online. 132 Section 4 Article 12 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce').

6.2 How Thai copyright law copes with UGC issue The amendment resulted in the increased awareness of the online content sharing among users. It forced users to be more cautious when posting content or information online by encouraging the users to give credit to the source or the original content owners. Dr. Piboon, Chulalongkorn University professor and a well-known IP lawyer in Thailand said that “Universities and institutions must educate students to give credit to the source as a common manner and also encourage students to create original content and be creative without copying someone else work”.133 In light of exception and limitation of copyright infringement, Thai copyright law adopted the three-step test into section 32 of the copyright act, regarding the exemptions from copyright infringement and call it “Fair use provision” despite the fact that the provision has not been very clear enough. Copyright act 1994 Section 32:

“An act against a copyright work by virtue of this Act of another person which does not conflict with a normal exploitation of the copyright work by the owner of copyright and does not unreasonably prejudice the legitimate right of the owner of copyright shall not be deemed an infringement of copyright.”134

According to paragraph one of this section, any act against the copyright work in paragraph one shall not be deemed an infringement if the act is each of the followings:

133 See https://www.it24hrs.com/2015/question-copyright-online/(Last access on May 15, 2019) 134 Section 32, paragraph 1 of Thai Copyright Act B.E. 2537 (1994) by Department of Intellectual Property, Ministry of Commerce.

“1. research or study of the work which is not for profit; 2. use for personal benefit or for the benefit of himself and other family members or close relatives; 3. comment, criticism or introduction of the work with an acknowledgement of the ownership of copyright in such work; 4. reporting of the news through mass-media with an acknowledgement of the ownership of copyright in such work; 5. reproduction, adaptation, exhibition or display for the benefit of judicial proceedings or administrative proceedings by authorized officials or for reporting the result of such proceedings; 6. reproduction, adaptation, exhibition or display by a teacher for the benefit of his teaching provided that the act is not for profit; 7. reproduction, adaptation in part of a work or abridgement or making a summary by a teacher or an educational institution so as to distribute or sell to students in a class or in an educational institution provided that the act is not for profit; 8. use of the work as part of questions and answers in an examination.”135

It appears that section 32 adopted all three-step test from TRIPS agreement, saying that paragraph 1 consists of step two and three and paragraph 2 consists of step one. This leaves room for interpretation that the second and third steps, without the first step can be used as a general provision since from several court judgements136, the supreme court did not seem to use both paragraphs separately. It can be interpreted that the supreme court has regarded the first step as a condition for fair use defense, while also requiring the

135 Section 32, paragraph 2 of Thai Copyright Act B.E. 2537 (1994) by Department of Intellectual Property, Ministry of Commerce, available at www. ipthailand.org. 136 See Supreme Court Judgment No. 1908/2546. and Supreme Court Judgment No. 5259/2546.

47 defendant to prove that its act falls under any certain special cases listed in paragraph two. It seem that the court does not accept that section 32 paragraph 1 can be considered as a solo provision of fair use under Thai copyright law.137 For example, Parody work in Thailand has not been discussed broadly and is still debatable. Music work is another example that has not been put in the category in section 32 paragraph 2 which in this case, account has to be taken case by case. However, usually the UGC work may fit into the exception of comment and criticism with the acknowledgement of the ownership. Many scholars suggested the solution by divide both paragraphs in section 32 into separated section and set this section to be applicable generally. This can be the way to fill the law gap occurring now and in the future can later be the potential general exemption for UGC since most of the UGC are unprofitable and are not competitive against the original owner of the copyrighted work. In light of Thai copyright law system, our system is heading towards conservative regime and values the protection of the right holder quite too much.138 Unlike the broad scope of USA legal system and fair use, Thai copyright legislation does not open much space for user generated content. Even Creative common which is quite popular problem solving method in USA, Thai legal system has not adopted this method to be used widespread. According to the amended Copyright act, The Digital Right Management has been emphasized and the First Sale Doctrine is not in Thai copyright system, unlike the USA which means the right holder will continue to have high protection of their rights.

137Nandana Indananda and Suebsiri taweepon, “Fair use: An exploration of the Three-step Test in Thai Copyrights Law” Reprinted from IP Litigator January/February 2010, Volume 16, Number 1, pages 32-35, with permission from Aspen Publishers, Inc., Wolters Kluwer Law & Business, New York, NY. 138 http://v1.makewebeasy.com/article/index.php?page=show&id=1118 (last access on May 26, 2019)

Regarding transformative work such as mash-up videos or pictures, Thailand usually apply Fair use doctrine and rely on the exception of criticism, reporting, research from Article 32 of Thai copyright law. However, the credit of the owner should be informed and stated every time since the law states In light of the exception for online music mash-up in Thailand, there is only one vivid clause that is relevant for the case but not really direct to the UGC mentioned above. Article 36 of Thai Copyright act states;

“The public performance of a dramatic work or musical work, as appropriate, which is not organized or conducted to obtain profit from such activity and without a direct or indirect charge for watching the performance and with no remuneration for the performers shall not be deemed an infringement of copyright provided that it is conducted by an association, foundation or another organization which has objectives of public charity, education, religion or social welfare and that the first paragraph of Section 32 is complied with.”139

It appears that no matter what music posting on Youtube in Thailand is considered an infringement if done without the consent of the right holder. Although the law states that the work must obtain benefit which refers to the commercial nature of the work, the law also mentions a direct and indirect charge which seems to match with the nature of Youtube video that its core purpose is to generate the revenue out of video posting by advertisements. Moreover, the exception is merely limited to public charity, education, religion and social welfare which is quite narrow in scope. To sum it up, Thai copyright system is leaning towards the prevention and suppression of the copyright infringement rather than finding the balance of

139 Section 36 of Copyright Act B.E. 2537 (1994) by Department of Intellectual Property, Ministry of Commerce.

49 right between the original right holder and internet users which is contrast to the USA copyright system. The reference of the source and credit is very important, even though the use is purely private which is accentuated in the new Thai copyright provisions. According to the copyright amendment act, it appears that the main reason of the amendment is to protect the right holder and does not support the creativity and the true purpose of copyright law which is supposed to encourage creativity. The exception and limitation clause is leaning towards the EU approach which is the three-step test and does not open up to flexible interpretation and new specific clause, at least yet. Moreover, the intellectual property right management in Thailand still has flaws which results to the unfair exploitation of copyright by the copyright holders.

7.Crafting the possible solution towards transformative work 7.1 Emphasizing Users’ right In a the digital world, users play a huge role in generating culture, due to the platform that allows easy distribution of the contents and the emergence of Web 2.0.140 The copyright law needs to be adjusted for the rise of UGC as a significant cultural force in the twenty-first century. However, over the past two decades ‘users’ freedom has constantly declined. Overall, users have traditionally enjoyed relatively little attention in copyright scholarship and legal disclosure while the copyright holders have the full attention and too broad protection. Exception and limitation seems to benefit the author more and has failed to balance with the fundamental rights. To metaphor, users have been mostly viewed as ‘parasites’ who benefit from

140 See Yochai Benkler, The wealth of Networks: How Social production transforms markets and freedom 213(2006). L. Okediji, “Copyright Law in an Age of Limitations and Exceptions”, 2017.Niva Elkin-Koren, “Copyright in a Digital Ecosystem: A User Rights Approach”.

50 limits on the just rewards of authors.141 The law presumes that the authors do not create ‘out of thin air’, but in fact, all authors are users of preexisting materials.142 I think that good copyright law system which seek to promote relative process, should therefore address the rights of both authors and users with bias. Both aspects are crucial to promote the goals of copyright law and maintain a proper balance between authors and users. In recent years, several commentators have suggested that permissible uses, such as ‘fair dealing’ or ‘fair use’, should be treated as users’ rights.143 With the rise of UGC, users’ freedom to use copyrighted materials should not be limited with license but rather should be permitted to fit the true purpose of copyright law. The proposed task is to define which action should be permitted or be excepted without a license. The fact that the scope of users’ right can be too broad and not every action which contributes to user participation in creative processes should automatically gain protection as a user right, determining the aspect of commercial and private use can be the way to evaluate the scope of users’ right otherwise it can easily lead to piracy. 144 If the intended purpose of copyright is to promote the creation of works, the use of pre-existing materials to create a new expression should be encouraged. Simply avoiding copyright infringement makes it hard for amateur creator to create new work. In fact, USA fair use permits some unlicensed transformative uses which is quite interesting aspect to look into. Although

141 Abraham Drassinower suggested that the centrality of user rights derives from the notion of authorship which is fundamental to copyright law. Drassinower perceives authors as users: “authors are not only producers or creators but simultaneously users of other preexisting materials.” Abraham drassinower, Taking User rights seriously, In the Public interest: The future of Canadian Copyright Law. L. Okediji, “Copyright Law in an Age of Limitations and Exceptions”, 2017.Niva Elkin-Koren, “Copyright in a Digital Ecosystem: A User Rights Approach”. 142 Ruth L. Okediji, “Copyright Law in an Age of Limitations and Exceptions”, 2017. 143 See Hugh Breakey advocating the general applicability of rights language to describe user rights under copyright. Hugh Breakey. User’s Rights and the public Domain, 3 Intell. Prop. Q.312-23(2010). 144 Ruth L. Okediji, “Copyright Law in an Age of Limitations and Exceptions”, 2017.

51 transformative use is an important aspect in fair use, and was widely recognized by courts and legislators but users’ rights should be given more attention and certainty by adding more specific clause apart from the fair use which is the matter of interpretation case-by-case. Perhaps, the newly introduced Non- commercial User-generated content exception to copyright infringement under Canadian Copyright Law might set a good example or a role model to the problem. In fact, recognizing user rights may not only affect the interpretation of exceptions but it may also influence the scope of rights. Moreover, user rights may also help us exploring strategies beyond exception and limitation.145

7.2 Canadian specific exception for UGC

Today, Canada copyright law is best known for having recognized the user’s right as well as fair dealing principle which the highest court views as the most important user’s right. That makes Canada the only country in the world where the highest court has positively and repeatedly affirmed the principle of user’s rights within copyright law. Citing with approval Professor David Vaver, the Canadian Supreme Court explained: “user rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”146 Moreover, recent Canadian copyright law permits fair dealing for particular purposes which are strictly enumerated by the law, including research and private study.147

145 Niva Elkin-Koren & Orit Fischman-Afori, Taking Users’ Rights to the next level: A Pragmatist Approach to Fair Use, 33 Cardozo Arts & ENT. L.J. 1(2015). 146 See CCH v. Law Society, supra note 74, para 48. See also Niva Elkin-Koren, “Copyright in a Digital Ecosystem: A user rights approach”. 147 Following the Canadian Supreme Court decisions, the law was amended in 2012 to expand the categories of fair dealing. These categories before the amendment were: research, private study, criticism, review, and news reporting. The amendment added parody, satire, and education see Bill C-11. An act to amend the Copyright Act, First session, Fort-first Parliament, 60 Elizabeth II, Sep 29, 2011.

In September 2011, the Government of Canada introduced a new copyright amendment act, Bill C-11148 which includes the proposed UGC exception. This new Bill provides a new exception to UGC along with expanding the scope of fair dealing to include education, satire and parody to its existing exceptions such as research and private study, criticism, review and news reporting. Basically, there are two requirements for Fair dealing doctrine. First, it must fall under one of the allowable categories of uses in the legislation. Second, it must be ‘fair’.149 The term ‘dealing’ itself must also be fair having regard to the factors in the jurisprudence. Of course, there are some debates on the vagueness of the word ‘dealing’ and on the issue that extending the scope to education might risk over-extending the scope of fair dealing.150 The Supreme Court of Canada released decision151 that emphasized fair dealing as users’ rights and has set the good example to the balance of users and authors’ rights. The court viewed 30 second free music preview as a “research” exception for customers and ruled that the use was actually ‘fair’. Section 29.21(1), the Canadian Copyright Act provides the new exception for UGC as follows;

“…for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual – or, with the individual’s authorization, a member of their household – to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

148 Copyright Modernization Act. 149 SOCAN at para13. 150 House of Commons, Legislative Committee on Bill C-11, Evidence, 41st Parl,1st Sess (“House of Commons, Legislative Committee on Bill C-11”) (29 February 2012) at 1715 (Sylvie Lussier, President, Société des auteurs de radio, television et cinema). 151 SOCAN; Alberta v. Canadian Copyright Licensing Agency, 2012 SCC 37, [2012] 2 SCR 345.

(a) The use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes; (b) The source – and, if given in the source, the name of the author, performer, make or broadcaster – of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so; (c) The individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and (d) The use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter – or copy of it – or on an existing or potential market for it, including that the new work or other subject- matter is not a substitute for the existing one.”152

This exception has its nickname as “Youtube exception” for “non- commercial user generated content”. The interesting points of this section are firstly the aspect of dissemination. The second point is it refers to ‘the non- commercial use’ of UGC.153 To be permissible, the end-work has to be for non- commercial purposes preferable with the source or reference to the existing work if it is reasonable to do so. More importantly, the finished product does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work.154

152 Section 29.21(1) of the Copyright Act of Canada. 153 Ruth L. Okediji, “Copyright Law in an Age of Limitations and Exceptions”, 2017.Michael Geist, “The Canadian Copyright Story: How Canada Improbably Became the World Leader on Users’ rights in Copyright Law”. 154 Paul Schabas, Iris Fischer and Christopher Dimatteo, “Canada’s Copyright Modernization Act: A delicate Rebalancing of interests”, 2013.

However, some scholars concerned that the use of an existing work in the creation of a new work for non-commercial purposes as provided by the new section is not clear enough. In particular, the words “for non-commercial purposes” is too unclear and also the exception does not meet the first step of the three-step test as it is not a “special case”.155 In my opinion, section 29.21(1)(b) can be another problematic part due to its wording “…reasonable grounds to believe…” which can be hard to investigate the perfect grounds in the context. Where is the standard of the grounds and what is considered reasonable? On the other hand, Professor Peter Yu of the United States agreed with the Canadian exceptional clause and pointed out that Canadian UGC exception provided a much more limited exception than the fair use provision in the United Sates Fair use, which allowed for the transformative use of copyright works for commercial purposes. He pointed out that if the USA fair use passed the Three-step test, then so would the Canadian UGC exception.156 As a result, Michael Geist stated that “Canada is home to an expansive list of new copyright exceptions and the leading voice for treating limitations and exceptions within copyright as users’ rights.”157 Moreover, this provision is not limited to specific kind of work but also various kinds such as sound recordings as well as it is not limited to just making copies but also includes all

155 Administration’s paper on user-generated content, Bill Committee on the Copyright (amendment) Bill 2014. See paragraph 51 of Comments on the UGC provisions in the Canadian Bill C-32: potential dangers for unintended consequences in the light of the international norms on copyright and related rights by Dr. Mihaly Ficsor (November 2012) 156 See p.27 of Professor Peter Yu’s article on “Digital Copyright and the Parody Exception in Hong Kong: Accommodating the Needs and Interests of Internet Users”, as a submission on behalf of the Journalism of Media Studies Centre, University of Hong Kong in the consultation exercise on parody. See also his latest article on “Can the Canadian UGC Exception be transplanted Abroad?” (Intellectual Property Journal, Vol. 27, March 2014). Professor Yu is Kern Family Chair in Intellectual Property Law, Drake University Law School in the United States. 157 Michael Geist, “The Canadian Copyright Story”, 2017.

55 of the owner’s exclusive rights.158 Ireland seems to be in favor with the Canadian approach. In October 2013, a Copyright Review Committee in Ireland submitted a report entitled “Modernizing Copyright” to the Minister of Jobs, Enterprise and Innovation. It recommends introducing a new copyright exception for non-commercial UGC along similar lines of the Canadian model as the Committee view that UGC can help encourage innovation and also benefit the internet intermediary to which a user might upload any generated content.

8. Conclusion To begin with, the main problem to this dilemma is the broad scope of exclusive rights in the EU, in particularly the reproduction right. It seems like InfoSoc Directive provide the author with the unlimited scope of protection according to the words “…in any manner of form” without enumerating the the qualitative and quantitative standard of the right. However, Infopaq case opens door for the definition of the term by seeing the “originality” as the assessment of the scope of protection. In my point of view, reproduction right needs to be limited by the economic assessment regarding exploitation nature of the work. By weighing in this factor, the scope can be narrower and reasonable. In light of adaptation and transformative work which has not been harmonized in the EU, parody exception might be the least hurtful way for UGC regarding the Deckmyn case together with balancing the copyright with human rights namely freedom of expression and information. However, weighing in the human rights might just be the external solution to the problem while parody exception is too narrow in scope which allows only the work that contains mockery. Quotation right might be another interesting exception according to Painer case, but again the freedom of expression has to be taken into

158 Samuel Trosow, “Copyright as Barrier to Creativity: The case of User-Generated Content”.

56 consideration case-by-case depends on many factors. Moreover, regarding the Infopaq case, the exception and limitation clause needs to be interpreted in a strict manner. Not to mention the power of three-step test and its limited scope that mandate the whole exception regime, makes it hard for transformative work to exist in EU copyright system. Thailand copyright regime has so much in common as it follows the EU three-step and also has set list of exception and limitation. However, when it comes to interpretation in court, the court is leaning towards the fairness in U.S. doctrine more than the UK and looking forward to the adoption of U.S. Fair use. The exception of criticism and comment seems to be the most possible way for the existence of UGC in Thailand. In addition, giving credit and reference of author’s work seems to matter intensely as moral rights is protected in Thailand. Therefore, even UGC for non-commercial use has to be referred to the original owner of the work. As a consequence, Canadian specific exception clause for UGC seems like the best way to the matter since it is open doors for transformative use and introduces fairness in the digital environment by applying semi-opened fair dealing into the system. Moreover, users’ right has been given attention more than ever which is in contrast to the EU system that is an author-based system. Even though there is still some unclear part in the new exception but it can be seen as a kick-starter for the future of UGC that the EU should consider implementing.

Bibliography

Case law

C-5/08 Infopaq International A/S v. Danske Dagblades Forening C-403/08 Football Association Premier League and Others C-145/10 Eva-Maria Painer v Standard Verlags GmbH and Others

C-201/13, 3 September 2014 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others

C-360/10 SABAM v Netlog paragraphs 43-48.

Germania 3 “Gespenster am toten mann”, Federal Constitutional Court, June 29, 2000, [2000]

BGH Gies-Adler (File IZR 117/00)

C-70/10 Scarlet Extended paragraphs 45-50

C-275/06 Promusicae, paragraph 62-68.

C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and others.

SOCAN; Alberta v. Canadian Copyright Licensing Agency, 2012 SCC 37, [2012] 2 SCR 345.

C-419/13 Judgment of the Court (Fourth Chamber) of 22 January 2015 Art & Allposters International BV v Stichting Pictoright

Articles and Academic Journals

Andrea Giulia Monteleone, User-generated content and Copyright: The European Union Approach, Lund University

Creative Content in a European Digital Single Market: Challenges for the Future, A Reflection Document of DG INFSO and DG MARKT (2009)

Communication from the Commission on A Single Market for Intellectual Property Rights Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe

(24.05.2011)

Communication from the Commission on Content in the Digital Single Market, Brussels, 18.12.2012, COM (2012) 789 final

Daniel Gervais, The Tangled Web of UGC: Making Copyright Sense of User- Generated Content, 11 Vand. J. Ent. & Tech. L. 841 (2009)

David Henningsson, Copyright and Freedom of Expression in Sweden and the European Union: The conflict Between Two Fundamental Rights in the Information Society, Lund University (2012)

David E. Ashley, The Public as Creator and Infringer: Copyright Law Applied to the Creators of User-Generated Video Content, 20 Fordham Intell. Prop. Media & Ent. L.J. 563 (2010)

Dinusha Mendis and Martin Kretschmer, The treatment of Parodies under Copyright Law in Seven Jurisdictions: A comparative Review of the Underlying Principles, Parody and Pastiche.Study 2. January (2013)

Eric Oslund, Transforming European Copyright-Introducing an Exception for Creative Transformative Works into EU Law, Faculty of Law, Uppsala University (2013)

Ioana Vasiu; Lucian Vasiu, We Create, You Tube, They Infringe: Cases and Considerations regarding Intellectual Property Rights on User Generated Content Websites, 2013 Rom. J. Intell. Prop. L. 95 (2013)

Javier Díaz Noci, « Authors’ Rights and Audiences: Does Intellectual Property Protection Apply to User-Generated Content? A Comparative Legal Study of Online News », Sur le journalisme, About journalism, Sobre jornalismo [En ligne], Vol 4, n°2 - 2015, mis en ligne le 15 novembre 2015. URL : http://surlejournalisme.com/rev

Jacqueline D. Lipton; John Tehranian, Derivative Works 2.0: Reconsidering Transformative Use in the Age of Crowdsourced Creation, 109 Nw. U. L. Rev. 383 (2015)

Lambrecht, Maxime ; Cabay, Julien. Remix allowed: avenues for copyright reform inspired by Canada. In: Journal of Intellectual Property Law & Practice, Vol. 11, no. 1, p. 21-36 (2016)

Licences for Europe: Structured stakeholder dialogue 2013 http://ec.europa.eu/licences-for-europe-dialogue/ (13th of January 2014)

Martin Senftleben, User-generated content- Towards a new use privilege in EU copyright law

Mary W. S. Wong, Tranformative User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use, 11 Vand. J. Ent. & Tech. L. 1075 (2009)

Peter K. Yu, Can the Canadian UGC Exception Be Transplanted Abroad?, Intellectual Property Journal

Paul Edward Geller, A German Approach to Fair Use: Test cases for TRIPS criteria for Copyright Limitations?, Journal of the Copyright Society of the USA- Vol.57 (2010)

Prof. Dr. P. Bernt Hugenholtz, Prof. Dr. Martin R.F. Senftleben, Fair Use in European. In Search of Flexibilities, Amsterdam, November (2011)

Samuel Trosow, Copyright as Barrier to Creativity: The case of User-Generated Content

Steven Hetcher, User-Generated Content and the Future of Copyright: Part One - Investiture of Ownership, 10 Vand. J. Ent. & Tech. L. 863 (2008)

Steven D. Jamar, Crafting Copyright Law to Encourage and Protect User- Generated Content in the Internet Social Networking Context, 19 Widener L.J. 843 (2010)

The Gowers Review of Intellectual Property, 2006

Tracy Reilly, Copright and the Tragedy of the common, IDEA-The Intellectual Property Law Review

Books and literatures

Ansgar Ohly(Editor), Common Principles of European Intellectual Property Law, Mohr Siebeck, 2012.

Brad Sherman and Leanne Wiseman(Editor), Copyright and the Challenge of the New, Wolters Kluwer, Information Law Series, Volume 25, 2012

Jerry Jie Hua, Toward A More Balanced Approach: Rethink and Readjusting Copyright systems in the Digital Network Era, Springer, 2014

Irini A. Stamatoudi(Editor), New Developments in EU and International Copyright Law, Wolters Kluwer, Information Law Series, Volume 35, 2016

Justine Pila & Paul Torremans, European Intellectual Property Law, Oxford, 2016

Mirelle van Echoud, P. Bernt Hugenholtz, Stef van Gompel, Lucie Guibault, Natali Helberger, Harmonizing European Copyright Law: The challenges of Better Lawmaking, Kluwer Law International, Information Law Series, Volume 19, 2009

Niva Elkin-Koren and Eli M. Salzberger, The Law and Economics of Intellectual Property in the Digital Age: The limit of analysis, 2013

Paul Goldstein, Bernt Hugenholtz, International Copyright: Principles, Law, and Practice, Oxford, 2013

Paul L.C. Torremans(Editor), Intellectual Property and Human Rights: Enhanced Edition of Copyright and Human Rights, Kluwer Law International, 2008

Pascale Chapdelaine, Copyright user rights: Contract and the erosion of Property, Oxford, 2017

Roberto Caso, Federica Giovanella, Balancing Copyright Law in the Digital Age: Comparative Perspectives, 2015

Ruth L. Okediji(Editor), Copyright Law in an age of limitations and Exceptions, Cambridge, 2017

Sari Depreeuw, The Variable scope of the exclusive economic rights in copyright, Wolters Kluwer, Information Law series, Volume 31, 2014

Tatiana-Eleni Synodinou, Codification of European Copyright Law, Wolters Kluwer Law and Business, Information Law series, Volume 29, 2012

Trisha Meyer, The Politics of Online Copyright Enforcement in The EU: Access and Control, 2017

Websites

https://www.woodst.com/web-design-development/what-is-web-2-0-and-what- does-it-mean-for-you/

Http://whaits.techtarget.com/definition/Web-2--or-Web-2)

https://www.techradar.com/news/internet/web/interview-web-2-0-critic-andrew- keen-131068

http://www.oecd.org/internet/ieconomy/38393115.pdf (

https://help.instagram.com/1533933820244654

https://www.wipo.int/edocs/pubdocs/en/copyright/615/wipo_pub_615.pdf

https://www.copyrightuser.org/understand/rights-permissions/protecting/

https://www.consilium.europa.eu/media/35373/st09134-en18.pdf

https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=242 98&LangID=E

https://twitter.com/hashtag/safeyourinternet?lang=en

https://youtube-creators.googleblog.com/2018/10/a-final-update-on-our- priorities-for.html

https://creativecommons.org/

https://my-thai.org/digital-southeast-asia-thailand-2018/

https://www.marketingignite.com/2018-digital-marketing-trends-in-thailand- what-every-business-needs-to-know/

62 https://www.it24hrs.com/2015/question-copyright-online/

http://digi.library.tu.ac.th/thesis/la/0167/10%E0%B8%9A%E0%B8%97%E0% B8%97%E0%B8%B5%E0%B9%884.pdf

https://computer.howstuffworks.com/web-203.htm

https://www.tilleke.com/sites/default/files/2010_IPLIT__International_Litigatio n_0.pdf

http://www.komchadluek.net/news/crime/211095

https://united-kingdom.taylorwessing.com/en/news-insights/details/no-article- 10-breach-where-news-site-liable-for-ugc-says-human-rights-court-2013-11- 01.html

http://v1.makewebeasy.com/article/index.php?page=show&id=1118

https://www.engadget.com/2019/03/26/european-parliament-copyright- directive-article- 13/?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8& guce_referrer_sig=AQAAAAl1TZefRocevLB9qk1uJ1JE9YJk1v9uChUkL2FE q5lm7BESYL75S71eTuQsFdVhfmj7hotgEpa0Owght2KOpMW6uRdJ7O1xtf MG1rHgsluZHo5TmOod8TneLgqMDsZD1KBlA9CWFkfnPy67DdeIXhE- zpNNHnyNjzhrdBYyo4nn

http://copyrightblog.kluweriplaw.com/2018/06/18/julia-reda-discusses-current- proposal-directive-copyright-digital-single-market/

https://www.copyrightuser.org/understand/rights-permissions/protecting/

https://www.medialaw.org/component/k2/item/1820-canada%E2%80%99s- copyright-modernization-act-a-delicate-rebalancing-of-interests

https://thematter.co/rave/so-blur-about-music-lisence/11765