User-generated Content - Legal Problems Related To UGC

Legal Problems Related To UGC

Liability of Websites That Allow UGC: Websites are generally immune under U.S. law from liability if user generated content is defamatory, deceptive or otherwise harmful. The website is immune even if it knows that the third-party content is harmful and refuses to take it down. An exception to this general rule may exist if a website promises to take down the content and then fails to do so.

Copyright Dilemma: This notion refers to situations where copyright infringement is not explicit and might occur unintentionally. It may include posting a video on popular video-sharing websites, such as YouTube, showing a number of people dancing to music which is protected by copyrights. Despite the fact that such material is created by the author who in turn decides to publish it, the music which can be heard in the background is still protected by copyrights and should not be made accessible to the public without the permission of the original rights holder. As such, violations of copyrights are bound to occur frequently especially on international websites which unite users from all around the world. As a result of this unity, the issue of copyrights is considered convoluted because its treatment varies in different countries.

Internet Service Providers Liability: In the context of third party copyright violations, it is important to consider the liability issues between the content provider and the Internet service provider (ISP). In the legal literacy scholars have established two distinct models of liability as regards to ISP. These can be divided into "publishing information doctrine" and "storing information doctrine". According to the former view, ISP controls or at least has the ability to control the content published by using their services. In other words, ISP acts as a host and has the editorial control to take down and monitor content posted online. In order to establish secondary liability it is pivotal to evaluate the level of control practiced by the ISP. The latter view, on the other hand, applies to situations in where ISP acts as a mere host provider lacking any editorial role to the content posted online. Even though ISP might have awareness of the content run by using their services, it has no possibility to monitor or modify information.

In general, there are some differences in legislation between the US approach on ISP liability and the EU approach. In the US, the ISP liability is regulated under the DMCA which deals only with copyright issues. Section 512 stipulates so-called Safe Harbor provisions under which ISP can in certain detailed conditions escape liability. For example, ISP's are required to adopt a special take down policy, which allows individuals to respond to alleged copyright violations. The EU approach is horizontal by nature which means that civil and criminal liability issues are addressed under the Directive 2000/31/EC of the E-Commerce. Sections 4 deals with liability of the ISP while conducting "mere conduit" services, caching and web hosting services.

Content Providers Liability: The question of direct liability of the content provider might arise when uploading and downloading material in the Internet. Prior to UGC, direct liability issues have been tackled in so-called file sharing cases. This technology, much like in UGC, allows unauthorized reproduction and dissemination of information and the fundamental question of liability is determined according to copyright exceptions.

Copyright Exceptions: In certain cases use of copyright protected material can be allowed without a permission from the original right holder. In the US, the notion of fair use doctrine is used to determine whether the use of copyright protected material is allowed or not. Within this assessment the courts must focus on following list of non-exhaustive factors:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

In the EU level, the possibility to allow copyright exceptions is tackled by the article 5 of the so-called Copyright Directive, also known as the Information Society Directive. Article 5 of the Copyright Directive stipulates an exhaustive list of optional defenses which are subjected to the classical Berne three-step test. The list of optional defenses is conditional to members states implementation but these include use of copyright protected material for private use, education purposes, quotations and parody among others.

In general, unauthorized use of copyright protected material in the context of UGC might be allowed if it falls under the fair use doctrine or can be justified according to the list set out in the Copyright Directive. The fundamental difference between the US and the EU system is the more lenient case-by-case assessment practiced by US courts in relation to a more rigid system in the EU level.