1 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 2 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. 3 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 4 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 5 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 6 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. 7 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. 8 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. 9 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.