The Tangled Web of UGC : Making Copyright Sense of User-Generated Content

Even as a mere conceptual cloud, the term “user-generated content” is useful to discuss the societal shifts in content creation brought about by the participative Web and perhaps best epitomized by the remix phenomenon. This Essay considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation - the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work was used. One might also rely on another type of fair use defense - for example, that the second work was used in news reporting, or, although the case law on this point is still controversial, that the reproduction was fair use because it made the work more accessible. While it is clear that creating original content by reusing preexisting content is nothing new, the focus here is on amateur creation and reuse and the Essay discusses whether the amateur nature of the content constitutes a new normative vector. The Essay suggests that the first step to find adequate answers is a proper taxonomy of UGC