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The shift from a one-to-many entertainment infrastructure to a many-to-many infrastructure has deep consequences on several levels. It has made possible fan fictions, mash-ups, remixes, and collages, all distributed worldwide via the computing cloud. And it is not just entertainment. Blogs have transformed the access to, and arguably the nature of, information. How does copyright cope with this change?
Three Categories of User-Generated Content
Let us begin by identifying what we are talking about. Fortunately, the taxonomy of "user-generated content" (UGC) for the purpose of determining how copyright applies is fairly easy to establish. Basically, there are three types ofUGC: user-authored content; user-copied content, and user-derived content. The first type, user-authored content, is similarly easy. Take your vacation pictures. You are free to copy, upload, perform, and/or make available that "content" on any basis, including free and unrestricted use, imposing conditions for free use (such as those found in Creative Commons licenses), or licensing it commercially.
User-copied content is not inordinately complicated either. Copying an entire work is an infringement unless it can be considered fair use/dealing or covered by another specific exception. The ratio or amount used is also relevant. If only a short excerpt is used, a quotation "right" might exist: the copying may not be substantial enough to constitute an infringement.
The third category of UGC, user-derived content, is by far the most complicated. It forces us to answer some of the hardest questions a copyright lawyer might face. Let us first define the concept. User-derived content is content that was created using parts of one or more pre-existing protected works that are then transformed, adapted, or recast in some way. Three questions must then be answered. First, where is the border between copying and derivation? Second, where is the border between derivation and inspiration?
Third, should certain forms of derivation be authorized as fair even if they infringe copyright?
At What Point Does UGC Begin to Infringe?
The notion of derivation emerged with the recognition that something protectible lay beneath literal copying. Again, I am not talking here about uploading a song or commercial video to a third-party server. That is copying. I am talking about content that is modified or otherwise reused to create something new.
Everyone understands that copying...