User-generated online content 2: Policy implications
First Monday

User-generated online content 2: Policy implications by Michael B. McNally, Samuel E. Trosow, Lola Wong, Caroline Whippey, Jacquelyn Burkell, and Pamela J. McKenzie

This paper examines the policy dimensions of user–generated content (UGC). It argues that policy–makers must create a policy environment that both balances both creator and end user’s rights and allows for the flourishing of UGC production and distribution because of both its economic and cultural value and ability to stimulate innovation. This paper emphasizes that UGC is an important creative outlet because it possesses either or both originality and transformativity. It discusses the multitude of means through which UGC generates value, serves as a medium for cultural expression and allows innovative activity. Despite the importance of UGC numerous barriers exist to inhibit its production including private ordering mechanisms such as licenses and technological protection measures and both major branches of intellectual property law (patents and copyrights). This paper reviews the current policy framework for UGC in the U.S., U.K., and E.U. before presenting a case study of the proposed UGC exception in Canadian copyright law. It concludes by discussing the how policy–makers can create a flourishing UGC environment and provides specific policy recommendations.


The scope of UGC
Originality, transformativity and UGC
Importance and value of user–generated content
Barriers to user–generated content production and distribution
Policy responses to user–generated content
Canada’s proposed user–generated content copyright exception
Policy implications of user–generated content




The generation of new content by using existing creative works is not a new phenomenon; however, the availability of relatively inexpensive text, audio and video recording equipment and the spread of low–cost networked computing have given rise to the increasingly widespread production and distribution of user–generated content (UGC). Although throughout the second half of the twentieth century an increasingly small number of transnational media and publishing companies can to dominate the distribution of cultural materials (Schiller, 2007; Mosco, 2009), individuals and collaborative groups can now create and share creative content on a scale that previously could have only been undertaken by book publishers, recording companies and movie studios. As the volume of UGC increases so too does its value — not only economically, but also as a source of user innovation and an important means of cultural expression.

Although UGC democratizes creative content production, it creates significant challenges for traditional policy conceptions. UGC undermines the traditional dichotomy between the creator and the end user. In economic terms, the previously clear differentiation in roles between producer and consumer as well as between waged labour time and unwaged leisure time are increasingly blurred. The proliferation of transformative UGC, new creative works that are created through combining and transforming existing content, blurs traditional copyright policy distinctions to the point where traditional notions of authorship, ownership and infringement are fading in relevance. Finally, the industrial era Schumpeterian view of innovation originating in the large firms and benefiting consumers (Schumpeter, 2008) is upset as innovative forms of UGC are produced by dispersed end users. While this consumer driven innovation is often to the benefit of commercial firms, it is also a cause for growing concern among firms that own content.

Though UGC presents a challenge to policy–makers, it is imperative to have a properly balanced policy framework that will not only encourage UGC production and distribution, but allow such content to flourish. At the very least, policies should not inhibit the growing capacity for end users to engage in creative activities and cultural expression. Though the analysis is focused on the relevant policy frameworks in Canada, the U.S., and the U.K. because of the relatively comparable legal systems and shared Anglo–American history in these three nations, but more importantly because citizens in these nations are the heaviest users of the Internet in the world (in terms of average hours per user per month) (comScore, 2012), though a brief mention of the treatment of UGC by the European Union is also included. While the analysis if focused on Canada, the U.S. and the U.K., policy–makers in all jurisdictions should be keen to produce a policy framework that allows UGC to flourish.

This paper begins with a brief overview of the nature and characteristics of UGC and a discussion of the issues of originality and transformativity in such content before it examines the economic, innovative and cultural value of such content. The analysis then highlights the barriers to UGC production and distribution which includes limited possession of the requisite technological skills and tools, private ordering mechanisms such as licenses and technological protection measures (TPMs), and intellectual property devices, particularly copyright. The response of policy–makers to the ascendency of UGC is examined, and the recently proposed Canadian UGC copyright exception is critically scrutinized as an example of such a policy response. This paper concludes by discussing the policy implications necessary to create an environment where the needs of both content creators and users are met and where UGC production is encouraged.



The scope of UGC

We define user–generated content as content that is voluntarily developed by an individual or a consortium and distributed through an online platform. Our definition parallels the Organization for Economic Cooperation and Development (OECD) definition of user–created content: content “;which reflects a certain amount of creative effort, and which is created outside of professional routines and practices” [1]. In an earlier report (see Trosow, et al., 2010), we reviewed scholarly and grey literature to provide an overview of the context to which UCG–related policies must respond. We described the current state of three distinct but overlapping forms of UGC:

  1. Individual textual, audio, image, video, and multimedia productions that are distributed online through software platforms such as blogs, podcasting repositories, Flickr, Twitter, YouTube, and citizen journalism sites;
  2. Software modifications or applications that are written by individuals to operate within or augment specific previously existing datasets or hardware or software platforms (e.g., iPhone applications or ‘apps’, utilities that manipulate publicly available data sets, game or virtual world modifications); and,
  3. Formal or informal consortia that collaboratively produce and distribute UGC, including open source software (OSS), such as the Linux or Apache, and wikis, such as Wikipedia.

Building on this earlier work, this article examines the policy dimensions of UGC, describing several ways in which policy developed for a traditional market model is ineffective in a UGC model, and identify policy models that allow for the flourishing of UGC production and distribution.



Originality, transformativity and UGC

While there exists a considerable range in the forms UGC can take, an important distinction must be made with regard to the role of originality and transformativity in user–generated content. UGC is not the simple wholesale appropriation of content. When a user simply copies an episode of their favorite television show and posts it on YouTube, they are not generating new content. In contrast, UGC is defined by possessing an element of either originality or transformativity or some combination of the two. Originally authored creative content ranging from blog posts, a Wikipedia article or new open source software program are prima facie examples of how users can produce and distribute new, economically and socially valuable works. However, not all UGC is entirely original. One of the most important kinds of UGC is content where the author/creator has drawn on existing works and transformatively repurposed them into a new work. Transformative uses run the gamut from photo mashups that juxtapose two different images to video remixes drawing on hundreds of pieces of content. “Using a work as a building block for an argument, or an expression of the creator’s imagination, should be understood as a transformative purpose, in contrast to consuming a work for its entertainment value” [2]. Yet because this type of UGC draws on preexisting materials it is much more likely to have potential infringement implications and there remains a great deal of uncertainty about how well UGC creators will be protected under existing limitations and exceptions.

Transforming existing works into new creative content has a rich historical legacy. Shakespeare heavily drew on the works of others, and in the case of Henry VI he wrote less than one third of the lines in the first three parts of the play (Emerson, 1904). The practice of sampling and transforming music did not begin with Public Enemy and other early rap artists; it was practiced by classical greats including Beethoven (Arewa, 2006). Great artists from Picasso to Stravinksy and T.S. Eliot have celebrated the importance of stealing from other artists to create new works (Gowers, 2006). As noted by Arewa, “Current conceptions of authorship assume a dichotomy between copying and creativity ... such views of musical authorship fail to recognize that the use of existing works for new creations can be an important source of innovation” [3].

But Demers has noted that “... the same laws that restrict a pirate’s ability to bootleg DVDs and CDs are also inhibiting artists and musicians from creating new material through the transformation of preexisting works” [4]. Noting that small scale borrowings were readily tolerated in earlier decades and centuries, Demers asks the question why “no one seemed bothered by transformative appropriate in the past and why is it suddenly so threatening?” [5]. She answers this question by pointing to modern duplication technologies, which allow mass piracy as well as new forms of creative and transformative appropriation. She notes that “unfortunately, U.S. IP [intellectual property] law which has not yet come to terms with these distinctions, summarily prosecutes all acts of duplication in the same way as if they constituted piracy” [6].

One important way to facilitate the production of transformative UGC is to use works where authors have given up some of their rights in copyright and license the material under more open terms. While several licensing schemes exist, the most popular of such approaches is the Creative Commons licensing system. Through a simple and streamlined licensing system original authors can allow transformative uses of their work, and creators of remixes and mashups to find materials that are licensed for such uses. For example, materials licensed under a Creative Commons Attribution licenses (also known as CC–BY), can be legally incorporated into new UGC even if it is to be used for commercial purposes (Creative Commons, n.d.). However, it is important to note that users of licensed material must understand the various forms of licensing conditions as not even all types of Creative Commons licenses allows for transformative uses.

Since UGC must be either original or transformative it is valuable both economically and socially, and the following sections examines that multitude of ways that UGC generates economic value, facilitates innovation and furthers cultural expression.



Importance and value of user–generated content

Given the world leading use of the Internet by Canadians, Americans and Britons, it is necessary for these countries to develop a coherent policy framework that enables UGC creation and distribution, because such content is not only and increasingly economically valuable, but it is also an important source of innovation and avenue for creative expression. As the amount of UGC increases, so does it economic importance. In some cases UGC can provide revenue to its creators through direct payments, voluntary donations, ad revenue and licensing content to third parties (Borgne–Bachshmidt, et al., 2008). Aggregation and distribution of UGC are relatively easily monetized, and this fact is widely recognized by the business community. Google’s purchase of YouTube for US$1.65 billion in 2006 is paying dividends with the company earning an estimated US$450 million in revenue from the site in 2010 (Miller, 2010). The social networking site industry operates on two business models: subscription based and advertising revenue–based (Gangadharbatla, 2008). Photo–sharing sites generate revenue through integrated online photo finishing services and advertising (Reagan, 2008). While the possibility that business interests in these cases are exploiting the free labour provided by UGC content creators should not be overlooked, it is also possible to create an aggregation and distribution environment that meets the non–monetary goals of UGC creators as identified above while creating direct monetary value for the aggregator.

In some cases, the UGC itself generates significant monetary value as demonstrated by the examples of Counter–Strike and Second Life [7]. Counter–Strike, a multiplayer game that began as modification for the game Half–Life, is considered the most successful mod in the history of computer games: it was created by Minh Le and Jesse Cliffe (Kücklich, 2005). It was later bought by Valve Software for an undisclosed amount and subsequently sold as a standalone product for the XBox and PC (Kücklich, 2005). Counter–Strike has also been a source for other mods, such as Velvet–Strike, a collection of spray paints to use as graffiti on the Counter–Strike environment (Schleiner, 2002).

In Second Life (SL) user–generated content is frequently used to generate wealth, whether it is in Linden dollars or real world currency. Transactions in 2010 have already reached US$160 million (Nino, 2010). Users may sell clothing, buildings, or other objects. Residents of SL are able to duplicate their products at no cost, which means they are able to enjoy little marginal production and immediate economies of scale, if they choose to sell their creations to the SL community (Huffaker, et al., 2010). However, users must be aware that while they retain intellectual property rights over this content, Linden Lab may remove the user’s content, or the SL service, at any time.

Some collaborative UGC projects have gone on to spawn small but successful organizations. Wikipedia, for example, rivals major corporations such as Google, Microsoft and Yahoo as a Web destination, but does so on a small operating budget and with only a handful of paid employees [8]. UGC offers several other areas for the creation of value. UGC platforms may also be able to generate revenue by physical copies of related goods (OECD, 2007). Taxing authorities around the world are also investigating virtual worlds as a potential source of tax revenue (OECD, 2007). However, potential tax liability may dull user’s interests in creating UGC.

Internet service providers (ISPs) benefit from increased demand for Internet access required to both create and consumer UGC (OECD, 2007). The popularity of UGC on mobile based platforms such as cellphones increases the likelihood of significant revenue for mobile service providers (Borgne–Bachshmidt, et al., 2008). The use of UGC may also be leveraged to create a brand value (OECD, 2007). During Super Bowl XLIV in 2010, Doritos advertised using user–generated commercials, which in turn became popular commercials to view on YouTube (Inasi, 2010). While UGC creators are typically not directly remunerated for their contributions, some UGC platforms are experimenting with methods to provide creators a share of the value generated from their content (Borgne–Bachshmidt, et al., 2008).

Collaboratively authored open source software (OSS) can be marketed as a consumer or business product. Even when such software is given away for free, its creators may be able to provide support and service for a fee (Maher, 2000). Technical support provides a greater share of the software industry’s revenues than the sale of software itself (Benkler, 2002). OSS projects typically lack documentation, but this creates a complimentary market for private firms (Maxwell, 2006; Lerner and Tirole, 2002).

Businesses and organizations are recognizing the benefits of incorporating UGC into their online marketing strategy (SEO Internet Marketing, 2010). Armstrong and Hagel (2000) indicate that the Internet presents a social and economic opportunity for businesses to capitalize on electronic communities. Leveraging user–generated content means allowing and encouraging interactions between electronic communities that will enrich the experience for UGC consumers. This also entails anticipating management in supporting, designing and operating online communities, and creating new roles in organizations. Though some content holders believe that UGC is value–destroying, such transformative activities content tend to not only enhance the value of existing content, but also creates new markets and drives user innovation.

UGC is also an increasingly important source of innovation. Although Schumpeter emphasized the crucial role large corporations play in spurring innovation, UGC demonstrates that sometimes the gale of creative destruction originates not from corporate R&D department but from the creative mind of dispersed users. The industrial model of innovation that emphasized the importance of centralized research and development departments is no longer applicable to intangibles (Strandburg, 2009; Maxwell, 2006), and the proliferation of user–generated content evinces that innovation policies premised on large, centralized players no longer hold (Borgne–Bachshmidt, et al., 2008). There are numerous examples throughout history of the roles users/customers play in facilitating innovation. The Oxford English Dictionary, the early automobile and the home computer all benefited from the innovative activity of users (Maxwell, 2006). The history and success of open source software (OSS) demonstrates that proprietary rights are not always necessary to stimulate innovation (Zittrain, 2004). Merges (2004) notes that over the past several hundred years social norms of sharing and reciprocity have been equally important as exclusive rights in advancing innovation. A study by Statistics Canada in 2000 found the common perspective that patents encourage innovation was incorrect; it was, in fact, innovative activity that resulted in increased patenting (Baldwin, et al., 2000). User–generated content is particularly important as part of an innovation strategy because the type of content produced by users will differ from the type of content produced by firms responding to market based incentives (Elkin–Koren, 2005). Wikipedia and Linux demonstrate that users can collectively and collaboratively create and maintain complex products (Tapscott and Williams, 2008). While UGC may be viewed by some as a threat to existing content providers, it should be seen as complementary as UGC opens up new ways of connecting businesses with consumers and can generate renewed interest old content (OECD, 2007). Furthermore UGC should be an important part of any government’s digital economy strategy as the OECD notes that UGC can spur R&D and innovation, enable technological spillovers, develop ICT skills and foster both local and more diverse content (OECD, 2007). Given the complex and dynamic interaction between collaborative UGC and traditional intellectual property devices, governments must make a concerted effort to carefully balance policy choices to maximize innovation in a very different context than was traditionally present.

The concepts of “crowdsourcing” (Shirkey, 2008), “wikinomics” (Tapscott and Williams, 2006), and the “long tail” (Anderson, 2006) have been widely hailed in the business world as ushering in new and empowering democratic models of production and distribution where power is shared between producers and consumers. Co–creative media production, however, sits uncomfortably with our current understandings and theories of work and leisure (Banks and Deuze, 2009; Sotamaa, 2007). Tensions between ethical and economic models of production and definitions of value relating both to social impact and to monetary accumulation destabilize many taken–for–granted (Arvidsson, 2008). The collaborative construction of new media products is linked with more than the creation of economic value; it is argued to be inextricably linked with civic engagement (Harrison and Barthel, 2009). The importance of non–market motivations may lead to tensions over achieving economic sustainability without sacrificing non–market ideals (Chege, 2008). Since the collective ethic of content creators embraces unpaid rather than paid labor and offering products at no cost (Ritzer and Jurgenson, 2010), user–creators’; labour may be exploited and the labour of waged digital workers may be devalued, rendering their status all the more precarious (Fuchs, 2009; Banks and Humphries, 2008; Gill and Pratt, 2008). For example, the Huffington Post recently won a legal battle with against an estimated 9,000 unpaid, bloggers who contributed to the site and were collectively seeking over US$100 million in payments. The U.S. District Court judge found that the bloggers repeatedly provided there work with no expectation of being remunerated and as such were not entitled to compensation (Stempel, 2012). Furthermore, recent scholarship on user–generated content cautions that these models of production are double–edged; the very mechanisms that allow for creator freedom also offer avenues for entrapping the user to produce for the firm (Petersen, 2008; Zwick, et al., 2008; van Dijck and Nieborg, 2009).

In addition to its direct economic value, UGC also possess considerable value as a means to enhance and develop skills for producing digital content. The creation of mobile applications or software requires a greater knowledge of computer programming; however, contributing to an open source project is also a skills developing endeavor (Maxwell, 2006). UGC contributes to skills development in younger age groups who can then mobilize such skills later on as they begin and advance in their professional careers (OECD, 2007). Ten years ago students in film programs spent much of their time learning video editing techniques, but because of UGC many now arrive with these skills in hand (Hargreaves, 2011). Creators of UGC are often able to use the skills and social capital they develop working voluntarily to gain future commercial employment (Lerner and Tirole, 2002; Bernardo, 2007; Banks and Potts, 2010). But the advantages gained though engaging with UGC should not be thought of in strictly instrumental terms.

While UGC has economic value and its production can enhance the skills of creators, we posit the most important value of UGC is socio–cultural. The production of UGC is not, as implied by the name, the same as the passive consumption of content; instead, it is an expressive act, and governments or corporations that stifle its production disempower creators (Gervais, 2009). UGC often encourages collaboration in a variety of ways ranging from collaboratively authored works such as Wikipedia to user based ranking systems that can be found on YouTube and Digg (Elkin–Koren, 2011). These collaborative elements stimulate discussion and review encouraging self–reflection and further conversation and interaction (Susarla, et al., 2012). Furthermore UGC is democratic with many UGC portals having rating/review mechanisms that allow what end users view as important be more prominently featured (Hunt, 2007). Crucially it is through these expressive, collaborative and democratic acts that intellectual works acquire cultural significance (Tushnet, 2008; Halbert, 2009). Given that UGC is a powerful, democratic venue for cultural expression and self–reflection, policy–makers should be keen to create an environment where such content can flourish and citizens can freely express themselves.

The destabilization of many traditional dichotomies such as producer/consumer, labour/leisure, and economic/social value has led many to conclude that the policy infrastructure developed for a traditional market model is ineffective in a UGC model. UGC forces redefinitions of what content is, and who produces, owns, and has access to it (Grimes, 2006; Humphreys, 2009), who is liable for damage (Valcke and Lenaerts, 2010), and what constitutes fair use (Collins, 2010). UGC has a profound and sometimes disruptive impact on matters relating to regulation, governance, and culture. It requires an expansion of what democracy means and what it entails in the digital networked environment (Dizon, 2010). Additionally, the UGC production and consumption models make new demands of the tools of production, calling for different socio–technical affordances, including functionality and architectural choices, customization and tailoring mechanisms, software and content copyright licenses (Dörner, et al., 2009; Scacchi, 2010; Obrist, et al., 2008). Given the innovative nature of UGC and its cultural and economic value, UGC production and distribution should be encouraged; however, a number of technological and legal barriers fetter its creators.



Barriers to user–generated content production and distribution

Barriers to UGC production and distribution take three primary forms. First, to produce and share UGC individuals must have the requisite technology and skills as well as access to appropriate tools. Second, private ordering mechanisms such as licenses and technological protection measures (TPMs) provide content owners increased control over their products even beyond the scope of publicly ordered intellectual property law. Finally, copyright and patent laws directly provide powerful legal mechanisms which impede the creation and dissemination of UGC.

Before would–be users can create and share content they require not only access to technology but the ability to effectively use several technologies. The primary technology required to support UGC is broadband Internet access. But, access alone is not sufficient, as engagement with UGC is only possible when the cost of such broadband is affordable given the large amount of uploading and downloading that may be done by UGC creators (OECD, 2007). In addition to affordable and reliable access to the Internet, the development of UGC is dependent on access to appropriate tools including hardware, software, and technical knowledge.

All collaborative UGC requires some basic level of technological literacy. While younger individuals are likely to readily possess the skills required for UGC production, governments may have to provide targeted programs to older generations, the disabled and those from lower income brackets (OECD, 2007). Creating supportive learning environments and developing interfaces that are simplified for users and learners may help with closing this gap (Karahasanovic, et al., 2009). Since engaging with UGC usually involves interaction with Web sites or services that require the provision of personal information, privacy is also an issue. While a growing number of users are aware of the risks involved in providing personal information (Lenhart, et al., 2007; Fisher, 2010), even experienced content creators may need to keep abreast of the shifting world of privacy settings and regulations (O’Neill, 2010).

Closed development systems, proprietary formats, licensing and approval systems create challenges for UGC developers (Wooldridge and Schneider, 2010). For instance, Apple’s unwavering stance against Flash which Steve Jobs (2010) criticized as, “no longer necessary to watch video or consumer any kind of Web content,” has been a thorn in many Flash–based developers’ sides, and one of the many examples of closed development environments that prevent the unification of the mobile experience (Balsillie, 2010). Although Apple continues to disallow Flash on the iPad, third party developers have developed applications that overcome Apple’s ban (Garling, 2012). Former RIM co–CEO Balsillie states, “we believe that you can bring the mobile to the Web but that you don’t need to go through some kind of control point of an SDK [software development kit]” (Balsillie, 2010). Proprietary, closed platforms limit the dissemination channels available to UGC creators, while providing even greater control to established content producers.

Private ordering mechanisms can be a significant barrier to UGC creation and distribution. Private ordering techniques can be either technological, such as Technological Protection Mechanisms (TPMs) including Digital Rights Management (DRM) software, or legal devices such as licensing agreements and End User Licensing Agreements (EULA) specifically. Unlike statutory intellectual property laws, which are public ordering mechanisms under the jurisdiction of federal governments, private ordering mechanisms provide private firms and individuals a broad range of ability to stipulate the terms under which intellectual content can be used. Very often these terms limit the ability of end users to engage in the full range of lawful activities that they are otherwise entitled to practice. While copyright does allow the licensing of content to users, profit maximizing firms are likely to only limit such licensing to commercial opportunities where pecuniary returns can be maximized (Elkin–Koren, 2005). In addition to contractual terms, DRM can be used to restrict uses of copyrighted material preventing creators from accessing and using material that would be covered by fair dealing exceptions to copyright (OECD, 2007; Craig, 2010; Lessig, 2001). The content industry sponsored site Principles for user generated content services ( recommends that UGC platforms use DRM technologies to detect infringing content. Although the site does suggest that fair use be accommodated by UGC platforms, once content is suspected of infringing it is either blocked or the uploader is required to license it (Principles for user generated content services, n.d.). This approach to DRM fails to recognize that copyright law allows the use of infringing materials in some cases including transformative UGC. In contrast the Electronic Frontier Foundation’s own set of UGC principles recommend that filters only block content if nearly the entirety (90 percent or more) of the uploaded content is comprised of a single copyrighted work, and more importantly, after a human examines materials flagged by this kind of TPMs (Electronic Frontier Foundation, n.d.). While it is logical to have UGC platforms bear some of the responsibility for identifying infringing content (as UGC drives web traffic and opens up a variety of revenue streams), as noted by Sawyer, “when the policing burden shifts from copyright owners to UGC sites, fair–use considerations are in danger of being largely dropped because technological filters are unable to accommodate them” [9].

The use of differing licensing schemes may create a situation where content from one site may not be posted on another. For example, the GNU Free Documentation License (GFDL) restricts content use to those using the same license (Elkin–Koren, 2005), The result is that initially, for example, content from Wikipedia could not be added to Wikitravel, which uses a Creative Commons Share Alike license, and content from Citizendium, which uses the Creative Commons Attribution Share Alike License, could not be used on Wikipedia (Lih, 2009), although all three Web sites now use the same license.

While contracts have the potential to limit UGC production, it has been noted some private ordering is necessary to allow the flourishing of collaborative UGC (Elkin–Koren, 2005). OSS creators have also made extensive use of licenses; they are used not only to allow access to the work, but also to prevent others from converting it to a proprietary product (Free Software Foundation, 2010). Licenses, contracts and Terms of Use agreements can be used to help creative communities standardize rights and duties (Elkin–Koren, 2011). Both the Canadian and British governments provide access to copyrighted government data through open data initiatives. Importantly, both governments license users the rights to exploit the data even for commercial purposes (U.K. National Archives, n.d.; Canada, 2011). Such forward–thinking licensing terms not only facilitate the production of UGC, but encourage its creators to add value to government information and create new information services and applications; however, like TPMs and DRM, licenses and contracts are private ordering mechanisms that can both inhibit and encourage UGC and require careful scrutiny from users.

The final and most significant barrier to UGC production and distribution is intellectual property laws and copyright in particular. While individual countries do have some differences in their approach to copyright law (such as the length of term of protection) many aspects of copyright are internationally harmonized through successive global copyright treaties including the Berne Convention [10], the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) [11] and the World Intellectual Property Organization (WIPO) Copyright Treaty [12]. The global scope of these treaties is reflected in the number of signatories each agreement has; there are 165 contracting parties to the Berne Convention (WIPO, n.d., a), 153 World Trade Organization members who are signatories to TRIPS (World Trade Organization 2012), and 89 contracting parties to the WIPO Copyright Treaty (WIPO, n.d., a; n.d., b), though the zeal with which each country enforces its treaty obligations does vary. Regardless of where users create UGC they have to be mindful that international agreements and national copyright legislation grants copyright owners control over adaptations (or derivative works) [13]. At the same time, the Berne Convention provides that “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work” [14]. In any event, creating transformative or original content based on an existing work carries risks of infringement liability of the underlying work. As a result, in order to distribute content through various UGC platforms, creators often have to license their content to the site and retain the copyright, though in some cases creators have to assign their copyrights to the hosting platform (OECD, 2007).

The scope of copyright protection also includes software, which is generally treated as a literary work. The TRIPS agreement requires its 153 signatory countries to afford software copyright protection [15]. Because copyright law gives copyright owners the exclusive right to produce, reproduce publish and create what amounts to derivative works, UGC creators need to ensure that material take from an existing work is licensed or such use is within the scope of limitations or exceptions such as fair dealing [16] (in Canada) or fair use (in the United States) [17]. Burri–Nenova (2010) argues that some video games are designed through code and contract as complete “walled gardens,” rendering them immune to fair use exemptions.

Open source software is also more susceptible to claims of copyright infringement. Because the source code is readily available for inspection, it is easier for right holders of proprietary code to scrutinize OSS products for potentially infringing code (Zittrain, 2004). Providing copyright protection for software also complicates the traditional idea–expression dichotomy in copyright. Under copyright law ideas are not protected, but their specific expressions are (e.g., the character of Robin Hood is an idea and not protected, but a specific book or film containing a Robin Hood character is an expression and protectable). In the case of software it is often difficult to separate the idea from its expression, and this problem is further complicated when source code is not made available to reveal the expression of the idea embodied in the software (Weber, 2004).

With respect to mashups, copyright restrictions can form a major barrier to UGC distribution. In cases where UGC is created from a large number of source materials there can be significant transactions costs involved in determining, contacting and negotiating with the rights holder (Elkin–Koren, 2005). Though the fair use doctrine in the United States allows of the creation of transformative works, judicial precedents in cases related to sampling and hip–hop music from the early 1990s have limited the practical application (Wong, 2009; Gowers, 2006). For example, in Grand Upright v. Warner [18], rapper Biz Markie was found liable for infringement for sampling Gilbert O’Sullivan’s song “Alone Again Naturally” with Judge Duffy going so far as to note that sampling not only violated U.S. copyright law but also the Seventh Commandment (Grand Upright v. Warner, 1991). A U.S. appeals court in Bridgeport Music v. Dimension Films [19] found that not only does the borrowing of three notes constitute infringement, but also endorsed the general principle, “get a license or do not sample” (Bridgeport Music Inc. v. Dimension Films, 2005). While these decisions can be criticized as they depart from the established case law on fair use of works, they have had a significant chilling effect on the willingness of artists to fully utilize their users’ rights. Although the letter of U.S. fair use doctrine emphasizes transformability, judicial interpretation has limited its applicability. The situation is even more tenuous in other jurisdictions where end users do not enjoy the benefit of open–ended fair use provisions.

For example, in Canada and the United Kingdom, the statutory fair dealing provisions are not open–ended but are based on enumerated categories. The Canadian Copyright Act allows fair dealing only for purposes of research and private study (section 29) for criticism and review (section 29.1) and for news reporting (section 29.2), but not transformative uses as such. In the recent round of copyright consultations conducted by the federal government (Canada, 2010), many commentators suggested that the words “such as” be added to the statutory text to confirm that the categories are illustrative rather than exhaustive along the lines of the U.S. Act (see Trosow, 2009).

As a practical matter a broad and more explicit exception in the form of a user’s right is necessary to fully enable the production and dissemination of UGC. The Canadian Parliament is currently considering such an approach. Though Bill C–11 [20], the current copyright reform bill now pending, would add education, parody and satire as new categories of potential fair dealing and would also create a specific UGC exception, current copyright law acts as a barrier to many forms of UGC production and distribution. This issue will be further developed in the Canadian context in the second next section. The ever–constant specter of costly litigation creates a chilling effect and acts as a major deterrent to UGC production and distribution (Merges, 2007). For example in 2009 the National Portrait Gallery in the United Kingdom threatened to sue Wikipedia for copyright infringement for images found on the site, resulting in the quick removal of those images from Wikipedia (Chacksfield, 2009). To create a flourishing UGC environment copyright law must deftly balance creator and end user rights.

Patent laws can form another significant intellectual property related barrier for certain kinds of UGC. Although software is protected through copyright, several jurisdictions including the United States, Japan and Australia also afford patent protection for methods of doing business that are embodied in computer programs (Hall, 2009). Historically patents have been used to protect new, useful and non–obvious products and processes; however, over the past 30 years the scope of patentable subject matter has expanded to included computer–based business processes covering the functions of software. In the case of OSS and some apps the functions of these programs may be patentable, thus creators of these types of UGC must be careful not to infringe on others patents or risk being sued. In 2011 at least two companies (Lodsys and MacroSolve) began patent lawsuits against a range of iOS app developers (Arthur, 2011a; 2011b; 2011c). This layering of IP protections on software is likely to impede user innovation (Heller, 2008, Shapiro, 2000). The increasing aggregation of patents by non–practicing entities (pejoratively known as patent trolls), firms that hold patents not to produce the underlying technology but for holding the patent as an asset that can be used to in litigation, presents further problems for open source programmers (Maxwell, 2006; Kahin, 2007). By one estimate, non–practicing entities account for 40 percent of patent cases dealing with software (Bessen, et al., 2011). The ascendancy of patent trolls has also spurred a similar approach in the area of copyright. In 2010, Rightshaven adopted a strategy of partnering with media companies to target bloggers and content aggregators with copyright infringement suits (Kravets, 2010); however, Rightshaven’s approach ultimately proved unsuccessful and the company is now indebted and has been forced to forfeit all of its intellectual property (Kravets, 2012). In addition to facilitating patent trolling, software patents create further problems for UGC production and distribution. The possibility that open source software products may be found to violate patents limits their appeal to organization (Huysman, et al., 2008). Several researchers examining the introduction of business methods patents in the United States have highlighted that many of these patents are of low quality (Hall, 2003; Burk and Lemley, 2002; Jaffe and Lerner, 2006). Two recent court decisions in Canada ( v. Canada and Canada v. [21] appear to have opened the door to the patenting of software functions in Canada, and as such Canadian creators of UGC may now face the additional hurdle of ensuring their content does not infringe on existing copyrights and patents. The Canadian Commissioner of Patents has issued new instructions to patent examiners that allow software functions to be more easily construed as patentable (Canadian Intellectual Property Office, 2011). The protection of software through both copyright and business methods presents a serious barrier to OSS and app production.



Policy responses to user–generated content

Although UGC is an important source of economic growth, innovation and cultural expression, policy–makers have been slow to react and begin dismantling the barriers which prevent an environment where UGC can flourish. A degree of inaction on the part of policy–makers stems from the fact that most countries’ ability to create new limitations and exceptions to copyright infringement are constrained by international copyright agreements. Both the Berne Convention and TRIPS contain a similar three–step test that limits exceptions to copyright to 1) certain special cases; 2) which do not conflict with the normal exploitation of the work; and, 3) do not unreasonably prejudice the legitimate interests of the rights holder [22]. It is important to note that despite such limitations the Berne Convention specifically allows the use of quotations [23]. Given the broad and open–ended character of fair use in the U.S. Act, which predates the TRIPS Agreement, we do not consider the spectre of the three–part test to be legitimate concern. But it is being used effectively as risk–adverse policy–makers want to avoid running afoul of the TRIPs agreement and run the risk of sanctions levied against it though the World Trade Organization’s dispute settlement process.

Although the United States is a major source of UGC, the legacy of the restrictive use of copyright to limit sampling in hip–hop music, a historical analogy to current UGC, along with inaction by American policy–makers and the notice and takedown system in the Digital Millennium Copyright Act (DMCA) [24] have characterized the U.S. response. U.S. copyright laws grant copyright owners the exclusive right to create derivative works from their original creation; however, this control does not extend to works that are transformative in nature, which are considered fair use (Wong, 2009). Despite the recognition that transformative uses are part of the fair use exception, judicial precedent from several cases involving sampling in hip–hop music have limited the application of this principle. In addition the DMCA’s notice and takedown system, which encourages rights holding organizations to aggressively claim infringement and ISP compliance with such notices, has created a chilling effect on some UGC platforms. For example, Viacom has accused and litigated against YouTube (Viacom v. YouTube [25]) for allowing massive copyright infringement for 150,000 pieces of Viacom’s intellectual property (Halbert, 2009). Though YouTube won an initial legal decision that it was protected under the DMCA’s safe harbor provisions (Viacom v. YouTube), on appeal the case was remanded back to district court in a victory for Viacom (Viacom et al. v. YouTube). A final outcome to the YouTube–Viacom legal battle has yet to be reached. Although policy–makers have failed to respond to the challenges created by UGC, UGC production and distribution in the U.S. has not been totally stifled. The high cost of enforcement limits rights holders’ willingness and ability to pursue every individual creator (Merges, 2007). In 2007 several U.S. rights–holding corporations, including Disney, CBS, Fox Sony Pictures and Viacom, established a set of UGC principles, which provide some guidance for UGC platforms on how they can disseminate content without upsetting rights–holders, although there are several limitations on how content can be distributed (Principles for user generated content services, n.d). Despite the inaction from American legislators on UGC, the courts and private sector have responded to the ascendancy of UGC and created an environment where UGC production flourishes, albeit under the specter of potential litigation.

A similar story of inaction in the face of barriers to UGC can be found in the United Kingdom. Before the surge of UGC content, the then Chancellor of the Exchequer, Gordon Brown, commissioned a review of intellectual property by Andrew Gowers. Released at the end of 2006, the Gowers Review of Intellectual Property explicitly recommended a transformative used exception for U.K. copyright law. Noting the long history of borrowing in the arts Gowers argued, “transforming works can create huge value and spur innovation” [26]. Despite the Gowers’ recommendation, which included a recognition that a new transformative use exception would have to comply with international copyright obligations, the U.K. government has failed to expand its user’s rights provisions and enact an exception. Unfortunately, a recent review of the U.K.’s intellectual property system requested by the Prime Minister failed to recommend either a UGC exception or substantive transformative use such as U.S. style fair dealing) exceptions (Hargreaves, 2011).

In the European Union there has been some formal discussion on how to change copyright policy to address UGC; however, as in the U.S. and U.K. there has been no change in policy. In 2008 the European Commission issued a green paper entitled Copyright in the Knowledge Economy, which specifically asked if a UGC exception to copyright should be created (Commission of the European Communities, 2008). In similar language to the Gowers Review, the green paper noted, “the obligation to clear rights before any transformative content can be made available can be perceived as a barrier to innovation that blocks new, potentially valuable works from being disseminate” [27]. In October 2009, the European Commission released the results of its consultations and suggested that stakeholders felt that it was too early to change copyright laws to enable UGC production and dissemination. Describing UGC as a “nascent phenomenon” the Commission elected to study the situation further (Commission of the European Communities, 2009); however in adopting this status quo approach European policy–makers failed to seize the opportunity to alter copyright law to create a framework that would better balance the interests of original creators and subsequent users. Most recently the European Commission has reaffirmed the importance of balancing creator and end user rights and has stated that it will engage in further consultations, but substantive policy changes remain missing (European Commission, 2011).

To date responses to the policy challenges posed by UGC have been lacking. In the United States the discussion has been left to the private sector, while in the U.K. and E.U. the issue has at least merited some discussion. The inaction of American, British and European policy–makers contrasts with the situation in Canada where pending copyright legislation may result in a specific UGC exception to copyright.



Canada’s proposed user–generated content copyright exception

In June 2010, the Government of Canada introduced a copyright amendment act, Bill C–32, An Act to Amend the Copyright Act [28], that addressed numerous aspects of copyright law including creating a new exception for UGC exception in section 29.21. However, Bill C–32 died on the order paper when the 40th Parliament fell in the spring of 2011. In September 2011 the Government of Canada introduced a new copyright amendment act, Bill C–11, An Act to Amend the Copyright Act [29] which is identical to Bill C–32 including the proposed UGC exception (which is reproduced in full in the Appendix). This section examines the unique Canadian policy response embodied in this proposed amendment.

Section 29.21 would provide that in order for content to qualify for the UGC exception it has to meet a series of conditions. First, the UGC must not be used or disseminated for commercial purposes. Second, it must include an attribution of the source of the original copyrighted material(s). Third, it must not be produced from infringing material. And finally, it must, not create a substantial adverse effect on the exploitation of the original work including both its existing and potential markets. Gervais (2010) has noted that the limitation of UGC to non–commercial uses may provide for only limited protection as sites like YouTube and many blogs ultimately have commercial aspects. He also argues that if users are required to prove there is not substantial adverse effect on the original work(s) the exception will become useless claiming, “if users are required to prove a negative (that is, the absence of a ‘substantial adverse effect’) then the exception will shrink into obsolescence” [30]. Furthermore, it could be argued that a piece of UGC that draws heavily on a single piece of content is adversely usurping the potential market for the original work. The lack of clarity regarding the UGC exception, and many sections of the bill in general, have drawn criticism from the Canadian Bar Association (2011) whose members form a broad based constituency of legal practitioners. The Association’s own working group that studied the Bill C–32 was unable to determine the scope of the exception, highlighting that even amongst lawyers there was considerable disagreement about how the UGC would actually be applied (Canadian Bar Association, 2011). Given that the text of the bill is identical to C–32, it is safe to assume that they will still be critical of the uncertain nature of the UGC exception.

A further limitation on the potential effectiveness of the new section 29.21 is the accompanying provisions in the bill for technological protection measures. Bill C–11 would a new section 41 under which the circumvention of a TPM would be illegal even if the underlying material were to be used in a non–infringing manner (such as for UGC or for one of the fair dealing exceptions). The proposed restriction on the circumvention of digital locks makes the UGC exception nugatory, and undermines the Supreme Court of Canada’s view that user rights should be seen as an integral part of copyright and not mere exceptions [31]. Though the Government of Canada should be commended for at least addressing the need to better protect the creators of UGC, the text of the provision as drafted is inadequate and requires greater clarification over the requirements for non–commercial use, and most importantly the TPM protection that would effectively eviscerates the value of the UGC exception.

Instead of trying to formulate a precise line between commercial and non–commercial uses, the degree of the originality or transformativity should be the crucial factor. While the commercial or personal nature of the use should certainly be a consideration, as it is under fair use analysis, it should not be determinative. Rather than attempt to craft a precise legislative definition of user–generated content, it would make more sense to include UGC within the scope of a broad fair dealing right, perhaps adding transformative uses to the listing of permissible categories for further clarity.



Policy implications of user–generated content

A forward thinking policy framework will require the balancing of several factors which will take into account the changing nature and context of the digital environment. First, the ability to access, utilize, re–purpose and distribute existing source materials in a transformative manner is a fundamental pre–requisite to optimal creation and use of UGC. Second, copyright and licensing laws that facilitate the creation and protection of UGC must also allow the production of UGC from other source material. Third, care must be taken not to do further damage to the fragile UGC environment through the enactment of overly restrictive digital locks provisions. Fourth, the policy framework must also ensure users’ privacy (and anonymity if desired) in creating and posting collaborative UGC, but also sufficient mechanisms to determine authorship in some specific circumstances. Fifth, the ability of rights–holders to restrict users’ rights under the Copyright Act by contractual provisions needs to be limited. Finally, the expansion of patentable subject matter to include software–based business methods must not encumber the production of OSS and apps given that software is already protected by copyright.

Useful policy guidelines for digital content can be found in the OECD’s OECD Policy Guidance for Digital Content (2008). In considering how to mobilize UGC, the OECD recommends creating an enabling environment by creating, “policies that encourage a creative environment that stimulates market and non–market digital content creation, dissemination, and preservation of all kinds” [32]. In crafting UGC policy the two central principles should be a balancing of interests and creating an enabling environment.

One of the most important aspects of the policy framework governing UGC is intellectual property law. While creators require some sort of reward or recognition for their activity, it is not necessary to provide them the full social value of their work (Ghosh, 2007). The proposed extension of the categories of fair dealing to include education, parody and satire, as well as the proposed user–generated content exception in Bills C–32 and now in C–11 represent important steps in creating the legal environment that may facilitate the flourishing of UGC in Canada, but without the necessary revisions this exception fails to create an enabling environment for UGC production and dissemination. At the same time, provisions in the Bill with respect to technological protections measures need to be carefully tempered in order to insure that digital locks do not create unreasonable barriers to the access and use of content, which is otherwise lawful and beneficial.

While the non–commercial UGC exception would facilitate increased UGC production, it may not necessarily enable distribution through platforms that generate advertising revenue such as YouTube (Gervais, 2010). Rather than limit the scope of the new exception with respect to the commercial/non–commercial dichotomy, which we have seen is very porous, it would be better to focus on the level of transformativity involved in the particular use. Furthermore, the provisions contained in Bills C–32 and C–11 with respect to technological protection measures will encumber UGC production. In its current form, the Bill C–11 encourages content owners to lock–down their content with TPMs, rendering the fair–dealing, UGC and other user–friendly amendments less effective.

The OECD Council on Broadband Development recommends balancing both user and supplier rights with respect to DRM (OECD, 2004; OECD, 2007). This sentiment is echoed by Merges who argues that the law’s goal should be to balance the claims of both creators and remixers (2007). While intellectual property plays an important role in encouraging original intellectual endeavors, overprotection of these works will lead to a decrease in follow–on works that use original works a source material and this problem is particularly acute in the emerging area of UGC. A well–balanced UGC policy will enable individuals to use and transform content ensuring an increased quantity of creative works by users and greater exposure and recognition for creators of the underlying material. In this regard a crucial policy challenge is how can legitimate uses of DRM techniques be enabled without some of the negative consequences of overly draconian approaches adopted by the DMCA and Bills C–32 and C–11.

The second major aspect of intellectual property law that raises concern is the recent decisions by the Canadian Federal Court and Federal Court of Appeal that creates the possibility of extending patentability to business methods. While software itself is not patentable, the extension of patent law to cover business methods implicates that some functions of software will become patentable. The software industry has a long record of innovation before the use of patents (Hunt, 2001). While patents do play an important role in encouraging innovation in industries where the outcomes of research are discrete products, in cumulative research areas strong patent protection presents a less convincing case and may impede innovation (Hall, 2003; Jaffe and Lerner, 2006; Bessen and Maskin, 2000). In the case of software specifically, there is no clear evidence that patents are necessary (Bessen and Hunt, 2004; Hall, 2003). Given the innovative history of the software industry before patent (and copyright) protection, the government must be careful not to dampen growth in this innovative and important sector of the economy. Recent changes to patent office practice evinces that Canada is moving towards software–based business method patents. The Canadian Parliament should move quickly to ensure that business method patents are excluded from the scope of patentable subject matter.

The other important policy consideration for UGC is privacy. Individuals need to be able to contribute anonymously, but at the same time it is necessary to ensure that content contributors can be identified for purposes of legal liability. If individuals’ personal information is made to easily available through UGC platforms there exists an increased potential for identity theft (OECD, 2007). The recent Supreme Court of Canada decision in Grant v. Torstar Corp. affirmed that liability for defamation extends to social media (Grant v. Torstar Corp., 2009). The EU and Canada have both adopted broad and substantive privacy and personal data protection legislation, which can ensure that individuals’ privacy is protected. The United States continues to adopt a sector–by–sector approach to personal information and should work to develop comprehensive legislation that is compatible with the EU’s Data Protection Directive [33] and Canada’s Personal Information Protection and Electronics Document Act (PIPEDA) [34].

In Canada efforts to scale back PIPEDA protection need to be revisited. While the bill would add some limited protection for consumers when organizations storing personal have a security breach [35], the bill contains numerous new exceptions under which businesses and law enforcement may disclose personal information without informing the individuals who are having their information disclosed [36].

In the United States several recently proposed copyright bills may seriously imperil UGC production. The House of Representatives Stop Online Piracy Act (SOPA) [37] and its Senate companion the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT–IP Act) [38] would require internet based financial transaction providers, ad services, and search engines to block or cease doing business with Web sites linked to piracy when content owners obtain a court order under the terms set out in the proposed acts [39]. The Commercial Felony Streaming Act [40] aims to make it a felony to cover songs and upload them to YouTube with commercial intent. What is particularly notable is the opposition to these bills. Google, the owner of YouTube, has decried SOPA as “draconian” (BBC News, 2011), while Justin Bieber, who launched a highly successful music career through YouTube covers has suggested that the Commercial Felony Streaming Act’s sponsor, Senator Amy Klobuchar, should herself be thrown in jail (Brown, 2011). Fortunately, the postponement and possible ultimate defeat of the PROTECT IP Act and SOPA is due, in part, to opposition by corporations important to the U.S. economy — Google, and Facebook (Abrams, n.d.; Weisman, 2012). Although the PROTECT IP Act and SOPA appear to be defeated, nothing stops Congress from considering future bills with similar measures and stifling UGC production and distribution.

Creating an environment where UGC creators are enabled presents a challenge to policy–makers. The old industrial era dichotomies that characterized the production of tangible commodities no longer hold and concepts such as producer/consumer and creator/user need to be reexamined in an era when the means of cultural production and distribution are no longer held be a few large intermediaries. Failure to create an environment where UGC can flourish will result in less economic growth, diminished cultural exchanged and dampened possibilities for innovation. Given UGC’s ability to address important social and economic goals, policy–makers must engage with the policy challenges posed by user–generated content. End of article


About the authors

Michael B. McNally is a recent Ph.D. graduate of the Faculty of Information and Media Studies at the University of Western Ontario. Samuel E. Trosow is an Associate Professor in the Faculty of Information and Media Studies and the Faculty of Law, at the University of Western Ontario. Lola Wong and Caroline Whippey are Ph.D. students in the Faculty of Information and Media Studies at the University of Western Ontario. Jacquelyn Burkell and Pamela J. McKenzie are Associate Professors in the Faculty of Information and Media Studies, at the University of Western Ontario in London, Ontario.
Corresponding author e–mail: strosow [at] uwo [dot] ca



This research was funded by a Social Science and Humanities Research Council of Canada Knowledge Synthesis Grant on the Digital Economy and the Graphics, Animation and New Media (GRAND) Networks of Centres of Excellence (NCE) of Canada.



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Section 29.21 of the Canadian Copyright Act as Proposed in Bill C–11

Non–commercial user–generated content

29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject–matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject–matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject–matter or to authorize an intermediary to disseminate it, if

(a) the use of, or the authorization to disseminate, the new work or other subject–matter is done solely for non–commercial purposes;

(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject–matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

(c) the individual had reasonable grounds to believe that the existing work or other subject–matter or copy of it, as the case may be, was not infringing copyright; and

(d) the use of, or the authorization to disseminate, the new work or other subject–matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject–matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject–matter is not a substitute for the existing one.


(2) The following definitions apply in subsection (1).

“intermediary” means a person or entity who regularly provides space or means for works or other subject–matter to be enjoyed by the public.

“use” means to do anything that by this Act the owner of the copyright has the sole right to do, other than the right to authorize anything.


Editorial history

Received 8 January 2012; revised 16 April 2012; accepted 1 June 2012.

Creative Commons License
This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 Unported License.

User–generated online content 2: Policy implications
by Michael B. McNally, Samuel E. Trosow, Lola Wong, Caroline Whippey, Jacquelyn Burkell, and Pamela J. McKenzie
First Monday, Volume 17, Number 6 - 4 June 2012

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