Is there any safe Threshold of originality internationally for copyright?

Question

I'm maintaining a web service where we ask everybody to accept the EULA (which includes required license to share the user submitted content within the site) before we accept any permanently stored user content. There has been some discussions about this and I definitely agree that asking for EULA is a huge hinderance for using the service.

However, is there any safe limit for threshold of originality for user generated content? Is there anything that couldn't exceed the threshold for international users?

For example, it seems to me that all of the following might exceed the threshold of originality:

• Starting a new discussion
• Replying to any discussion thread
• Commenting a picture
• Adding a new photo
• Creating a new blog post
• Creating a calendar event with description
• Creating a new form for others to fill in (think Google Forms alternative)

Is it possible to even assume that some length limit for text would be safe to not exceed the threshold of originality? Twitter used to have limit of 140 characters (due SMS technical limits) – could content shorter than 140 characters be covered by copyright already?

I'm looking for practical threshold and risks. I personally think that EULA is not bullet proof setup either to avoid potential copyright issues so similar level of risk would be acceptable for any service or site that faces similar issues.

Answer 1

Under U.S. law, these scenarios are governed by the Digital Millenium Copyright Act and especially by Section 230. User generated content does not create liability for the host, but the host has to honor a process for takedown notices of allegedly copyright infringing user content that it receives.

There is no uniform international standard for how the issue is addressed. But, the basic line of reason that the question pursues is not a fruitful one.

Compliance with U.S. law and having users represent that their work is not infringing and having them promise to indemnify and defend you if their work is infringing, and reserving the right to remove content alleged to be infringing, is probably the best that you can do. A EULA that states that can use the web page provided you give permission to others to copy your stuff can also reduce the conflicts between users over plagiarism.

Any meaningful web interaction platform with user generated content will give rise to content that can result in copyright infringement. The threshold for copyright protection is too low for your proposed strategy of limiting the scope of comments to work.

Answer 2

I will start with your list: none of these acts are protected under copyright law. The act of replying is universally available to everyone: it is not even protected by patent law. The content of a reply is protected by copyright, but not the act of replying.

Except in Eritrea which has no copyright law, in every country in the world, content is automatically protected. Thus is you post a short comment, that comment is automatically protected. What that means is that nobody can copy that text, therefore nobody can say "Smith is wrong when he says 'Fire is wet'" (copying the comment). There are ways around this, for example in the US you can defend yourself against an accusation of infringement using the "fair use" defense, but that is a slippery legal topic – you need to hire a lawyer to be sure that your use is "fair use". Under US law.

Another universal principle of copyright is that you can copy stuff, if the copyright holder gives you permission. Thus was born the EULA – you can use the web page provided you give permission to others to copy your stuff (but then you have to read the conditions carefully). The EULA may allow any use, or may allow any non-commercial use, hence the plethora of competing licenses.

The baseline inquiry that underlies infringement and originality claims is: did the copier copy the unique creation of the author? The text "Yes" or "No" is not my unique creation, so it is not protected. Nor is "Yes, Bob". As the sequence of words gets longer, we enter the realm where one can possibly prove that the copier did not create the text on their own, they copied someone else's text (infringement). Different standards for originality are required for graphic images, musical notes and text, because of the combinatoric possibilities of these items (in Western music, there aren't a huge number of notes and they combine in quite restricted ways).

Without permission to use posted content, people have very little right to even look at the content, and you certainly have no right to make that content available to others. This is why websites have EULAs.