Copyserfs and the Stationers’ Company 2.0: How and why copyright law is evolving away from the protection of authors and toward the protection of intermediaries
Greg Lastowka Professor of Law, Rutgers University, USA. Author of Virtual Justice (Yale University Press, 2010)
There is a $6 Bn trade on virtual worlds. Most of it relies on copyright law: from the creation of one’s identity to the very same content that is on the virtual platform. And whose property is a user designed avatar? Whose property are the structures that users create on virtual worlds?
In many ways, users are like peasants that contribute to the wealth of the virtual territory, but the territory is not theirs. The value of virtual platforms is created by users establishing community, not by gatekeepers.
On a pre-user-generated content (UGC) world, a professional created a product, a professional distributed the product, and a user consumed the product in exchange for a payment. In a UGC world, the user also produces, while most of the time, the professionals just maintain the platform where both creation and distribution happens.
Platforms compete to entice popular creativity; users are not paid to produce content; users pay platform to view user-generated content by subscribing to services or “pay” by viewing advertisements.
Critics (Lanier, Keen, etc.): UGC represents a coarser, cheaper culture without information gatekeepers; UGC is only created in limited genres; a large amount of UGC is poor quality; successful UGC creators would jump to join the ranks of content professionals; this is not making money; UGC creators rely on professional firms for tools, distribution and inspiration.
Boosters (Benkler, Jenkins, Shirky, etc.): UGC is more democratic; UGC allosw audiences to “speak back”; UGC is more collaborative.
Prior to 1709, there was a monopoly to the distribution of products. Thus, booksellers had a monopoly on books: they distributed the authors’ books to book purchasers, got money in exchange and transferred a part of it back to the authors. With the Statute of Anne, copyright was granted to authors so that there was competition amongst booksellers. With user-generated content, it is not clear who the author is, who the “bookseller” and who the end book purchaser. So, what is to be done with copyright?
- The economic rationale of copyright was, with regard to certain artistic forms, specific to certain technologies of distribution.
- Today, certain forms of artistic creativity are actually superabundant and the rationale of copyright does not apply anymore.
There is an added problem, as Marvel Enters. vs. NCSoft Corp shows: the latter provided the users to create their own superhero costumes, which somehow allowed this users to (re)create Marvel superheros’ costumes, thus infringing copyright. Who’s liable for that? Another example is MDY Indus. vs. Blizzard Entertainment. MYD created a software bot that enabled World of Warcraft users to play their characters for them, on an unattended way. Yet another example, Turnitin was sued for copyright infringement as it used students’ papers to run their business. In Facebook, Inc. v. Power Ventures, Inc. claiming that Power Ventures was copying Facebook data for their own purposes.
Some concluding remarks:
- UGC platforms are privately-owned and privately-policed spaces /chattels.
- If content is not portable the primary economic returns of UGC are obtained by the platform owner, not the author.
- The law is evolving away from protecting the creator to protecting the distributor/owner of intellectual property rights.
- But we should not kill the tools, the ways to recognize the value of UGC, we have to afford greater latitude for remix.
- We should protect the creator interests.
Discussion
Marsden: if many of these creations are personal, can we look at it as personal data and from a privacy point of view? Lastowka: Yes, there is an obvious intersection between privacy and property UGC.
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