To the Editor:

The issue of user-generated content (UGC) concerns key aspects of copyright, such as internet uses and possible exceptions and limitations, with which I have dealt with quite intensively. I was the Assistant Director General of WIPO in charge of copyright during the negotiation and adoption of the two WIPO “Internet Treaties.” Moreover, the first thorough interpretation of the “three-step test” for exceptions to and limitations of intellectual property rights was made by a WTO panel in which I was the intellectual property expert (see WTO document WT/DS/114/R).

For this reason, I followed with interest the preparation of the Canadian provisions on UGC, and I pointed out the unintended consequences they might create; in particular, the possible conflicts with the WIPO Treaties and the three-step test (see my paper at www.copyrightseesaw.net). In the meantime, the issue has also been addressed in the framework of the recent European Union consultation on the future of copyright, in which I intensively participated as the chairman of the working group on UGC in my country. I have noted with satisfaction that the draft White Paper recently published by the European Commission summing up the results of the consultation (made available through the IPKat weblog – ipkitten.blogspot.com – on June 23, 2014) has adopted a prudent approach which accords with our main suggestions. This is why I also follow with attention the preparatory work of the copyright amendments in Hong Kong where the issue of UGC has also surfaced.

There are at least seven reasons for which Hong Kong policy makers are right to follow the judicious European approach rather than rushing to legislate on UGC as a generic concept.

1) The first reason is that the Copyright (Amendment) Bill 2014 does address the issue of UGC where it is necessary for establishing due balance of interests, for guaranteeing freedom of expression and for providing an adequate legislative basis for flourishing creativity of online users – but only there. The bill contains provisions on parody, a typical form of UGC creation which truly should not be subjected to authorization by the authors of the “targeted” works because it could unduly restrict the freedom of expression. This has been a concern in the EU as well; the above-mentioned draft EC White Paper points out exactly the availability of exceptions for parody, quotations and incidental use of works when it concludes that no general UGC exception is needed.

The Hong Kong bill also includes provisions on a quotation exception; this is specifically provided in Article 10(1) of the Berne Convention under strict conditions for certain purposes such as commenting on existing works. In view of this, it is not clear what else the separate exception for “commenting on current events” might mean under the Bill. In order to avoid possible conflicts with the international treaties, it would be advisable to clarify and narrow the scope of that exception, preferably along the lines of Article 10bis of the Berne Convention.

2) The second reason is that the concept of UGC is too broad and vague. As a result, a general exception for UGC may hardly meet the first condition (“step”) of the three-step test (first adopted in Article 9(2) of the Berne Convention for the right of reproduction then extended to copyright in general by Article 13 of the TRIPS Agreement and Article 10 of the WCT, by the WPPT to related rights and Article 30 of the TRIPS Agreement even to patent rights); namely, that an exception or limitation may only be provided in a special – limited and duly determined – case. This would still also be true if the concept were somewhat narrowed to adaptions of existing works by users. Conflict with the first step is sufficient for an exception to fail the text; however, a further analysis would also prove that such an exception would not fulfill the second and third conditions of the text either.

3) The third reason is that opening the gates broadly, for any kind of UGC, might also lead to conflicts with authors’ moral right under Article 6bis of the Berne Convention to oppose any alteration of their works that would be prejudicial to their honour or reputation.

4) The fourth reason is that, in fact, there does not seem to be any real need to legislate on UGC as a general concept. The situation is hardly different in Hong Kong from the EU where the above-mentioned draft EU White Paper notes: “There is a lack of evidence that the current legal framework for copyright puts a brake on or inhibits UGC (absence of ‘chilling effect’)”.

5) The fifth reason is that the criterion frequently presented as a guarantee to avoid conflicts with normal exploitation of works – namely that a general UGC exception would only be applicable in the absence of commercial purposes – is hardly a true guarantee. If an unauthorized adaptation (see Article 12 of the Berne Convention) is uploaded on the internet without profit-making purposes, its impact on the normal exploitation of the works concerned (the second part of the “three-step test”) is hardly different from the case where profit is a purpose! (The difference is not in the loss caused to the owners of rights but only in the profit gained by others.) It is notable that even if the adaptation does not generate profit for its creator, the websites on which UGC adaptations are included are themselves usually profit-oriented (based, in general, on advertisement money).

6) The sixth reason is that appropriate licensing mechanisms have been developed and are ever more broadly offered by owners of rights and their representative bodies. The EC White Paper mentions this as a fundamental means of facilitating UGC creation. The system outlined on the www.ugcprinciples.com website and applied in practice on You Tube by Google is also a good example.

7) The seventh reason is a genuine “last-but-not-least” one and may also serve as a summary: “Mash-ups,” “memes” and similar electronically generated secondary productions based on existing works are widespread new forms of creativity which in certain specific cases (such as parody) should be supported by fine-tuned exceptions. However they may not be regarded as being able to come anywhere close to replacing mainstream original works requiring serious creative efforts and financial investments. Possible exceptions aimed at facilitating secondary productions must not endanger the sustainable creation and production of the primary works.

The draft EC White Paper warns that, although new exceptions may result in easier access in the short term to existing works for certain uses, “[t]he economic incentive to create and to invest in new works could weaken, with the dynamic, medium- to longerterm effect being that the production of creative content could be reduced.” Umberto Eco writes about this in his essay on “The Future of Book“ from another angle (he speaks about easy production of electronic variants from the viewpoint of books, but his words are valid for any valuable works on key issues of human life without the sustainable creation of which in the 21st century cultural degradation might take place):

A book offers us a text which, while being open to multiple interpretations, tells us something that cannot be modified. Suppose you are reading Tolstoy’s War and Peace: you desperately wish that Natasha will not accept the courtship of that miserable scoundrel Anatolij; you desperately wish that the marvellous person who is Prince Andrej will not die, and that he and Natasha will live together forever. If you had War and Peace on a hypertextual and interactive CDROM, you could rewrite your own story according to your desires; you could invent innumerable “War and Peaces,” where Pierre Besuchov succeeds in killing Napoleon, or, according to your penchants, Napoleon definitely defeats General Kutusov. What freedom, what excitement!...

Alas, with an already written book, whose fate is determined by repressive, authorial decision, we cannot do this. We are obliged to accept fate and to realise that we are unable to change destiny. A hypertextual and interactive novel allows us to practice freedom and creativity, and I hope that such inventive activity will be implemented in the schools of the future. But the already and definitely written novel War and Peace does not confront us with the unlimited possibilities of our imagination, but with the severe laws governing life and death.

For all these reasons, Hong Kong is wise to reject the idea of a broad UGC exception and rather to choose a solution which guarantees safe harmony with the international treaties.

There are at least seven reasons for which Hong Kong policy makers are right to follow the judicious European approach rather than rushing to legislate on UGC as a generic concept.