著作权法修订中的“用户创造内容”问题: 以中国内地与香港的比较为视角

"User-generated content" (UGC) is a type of human creativity action trigged by the Internet and the accompanying online communities of interest. According to the laws in Mainland China and Hong Kong, most UGC are possibly copyright infringements. However, the phenomenon of UGC is also firmly connected to copyright exceptions and the concept of "transformative use" that developed from judicial practices. In order to cope with the challenges brought by the digital and internet technologies to the traditional copyright regime, Mainland China has launched the third revision process to the Copyright Law of China, and published the third draft on June 2014, which adjusted the copyright exceptions part greatly. Hong Kong has proposed its Copyright (Amendment) Bill in 2014. By added a section about "infringement by communicating to pubic", it has expanded the coverage of copyright protection from specific forms of communication to the public to all electronic forms of communication. It also added an extra exception about "parody, satire, caricature and pastiche". Compared with the copyright exceptions part of the said draft of the Copyright Law of China, Hong Kong’s proposal is more reasonable therefore worth considering. For other types of UGC other than parody, it is suggested that the copyright owners should step in early and establish a good communication and cooperation with their UGC creators. Only by updating their commercial models and utilizing legal instruments such as licenses and self-binding announcements, copyright owners can achieve a win-win situation with UGC creators.