University of Haifa - Faculty of Law
July 25, 2010
WORKING WITHIN THE BOUNDARIES OF INTELLECTUAL PROPERTY, Rochelle C. Dreyfuss, Diane L. Zimmerman & Harry First, eds., Oxford University Press, Forthcoming
The Web 2.0 brought individuals to the forefront of creative processes, where Internet users generate their own content and share it with communities of their choosing. The availability of Internet access at low cost enables the distribution of creative materials to a large audience, thus increasing their potential impact on users.
User Generated Content (UGC), which is emerging alongside the industrial production of content, is transforming the mechanisms for producing and sharing cultural goods. Copyright law, which was designed to serve the needs of the culture industry, may play a different role in the UGC environment and may carry different consequences when exercised by the key players in this environment: users-authors and social media platforms. Users-authors are generating content and at the same time using content originated by others. UGC is facilitated by social media platforms which enable users to share their content with one another and to collaborate in producing new works. These players have distinct stakes and interests, which are different from those involved in the mass production of content. Users in the UGC environment actively engage in creating cultural flows. In sharp contrast to the consuming audience of the old media, users-authors have greater capabilities to act upon creative materials, and therefore they have a special interest in appropriating and sharing creative works. At the same time, however, new modes of production enhance the commercial pressures on individual users as these users become an independent unit of production. Conflicting desires to share and control content may come into play. Moreover, unlike the content industry, social media platforms do not engage in mass production and distribution of content. They are not dependent upon exclusive control over creative works. Quite the contrary: social media platforms often seek to promote open access and free exchange of information in order to attract more users to their social networks. Copyright law, which enables the commercialization of creative works, finds itself at the center of these processes.
This paper discusses the challenges to the copyright regime posed by the UGC environment and explores the emerging licensing practices for governing access. After a brief introduction to UGC in Part II, Parts III and IV take a closer look at social media platforms and users and discuss different challenges to the tenets of copyright law. Part III describes the rise of social media platforms as facilitators of UGC. It analyzes the interest of these new intermediaries and argues that their stake in copyright is very different from that of the old media. Part IV offers an analysis of key UGC features: that UGC reflects a wide range of creative activities, from an independent original creation to the appropriation of pre-existing works; that it is non-professional but not simply amateur; that it is generated by individual users but is sometimes the output of collaborative efforts; and that it is non-profit but at the same time might be vulnerable to commercial pressures. In Part IV, I explore the different mechanisms for governing access to creative works in Web 2.0 and examine their practical consequences as well as their normative implications. In Part V, I argue that the key UGC features discussed in Part III may have some important implications for governing access to creative works in the UGC environment. The rise of UGC requires us to reconsider the fundamental structure of copyright, which is based on exclusivity and central control, and to move instead towards a legal framework which enables collaboration. It also emphasizes the potential role of social media platforms in facilitating such a framework. Part VI offers some insights on the policy implications of this analysis.
Number of Pages in PDF File: 37
Keywords: UGC, Social Media Platform, Copyright, Web 2.0
Date posted: July 25, 2010 ; Last revised: May 25, 2014