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Electronic copy available at: http://ssrn.com/abstract=1663982
Tailoring Copyright to
Social Production
Niva Elkin-Koren
*
The prevalence of social production and the increase in User Generated
Content (UGC) destabilize some of the fundamental premises of our
current copyright law. Copyright law is primarily designed to regulate
the relationships of a single owner with other non-owners and is
focused on the sovereignty of the author/owner. Social production, by
contrast, requires us to articulate a matrix of relationships between the
individual, the facilitating platform and the communities and crowds
involved in social production. The transition from industrial production
to social production transforms the social relations associated with
the production of content and therefore requires adjustment of the
institutions that design such relations.
This Article closely examines the social dimension of content
production and analyzes the consequences for the governance of
content in the social web. The Article proceeds as follows: Part I
describes social production and analyzes the implications for the
stakeholders involved. I focus on three key features of social production
which affect why we create, how we create, and what assets are
generated by the process of creation. Part II explains why social
production might be incompatible with the current copyright regime.
In particular, I argue that copyright law mainly defines rights against
strangers and fails to provide a framework for managing the rights and
interests within a gigantic group of collaborators. Furthermore, the
* Dean and Professor of Law, University of Haifa Faculty of Law; Director, Haifa
Center for Law and Technology. Thanks to Gaya Bernstein, Michael Birnhack,
Gabriella Coleman, Rochelle Dreyfuss, Helen Nissenbaum, Katherine Strandburg,
Diane Zimmerman, and the participants of the conference on Copyright Culture,
Copyright History held by the Cegla Center at Tel Aviv University, January 2010,
the Global Cafe at the NYU Institute of Public Knowledge, and the Colloquium
on Information Technology and Society (ITS Colloquium) at the Information Law
Institute, NYU School of Law for their helpful comments. Thanks to Miran Eliyahu
for research assistance.
Electronic copy available at: http://ssrn.com/abstract=1663982
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Theoretical Inquiries in Law
[Vol. 12:309
exclusivity offered by copyright law may undermine social motivation
and collaborative production. Finally, in Part III, I outline some of the
challenges for legal policy.
INTRODUCTION
Digital networks are constantly challenging copyright. In fact, the copyright
regime is a regime in crisis.
1
The digital crisis of copyright has been
widely discussed in literature for more than two decades, beginning with
the introduction of software
2
and continuing with digital networks. The ease
of copying and the difficulties of identifying, monitoring and prosecuting
millions of users who engage in massive copyright infringements have raised
serious doubts about the relevance of copyright in the age of digital networks.
3
Some have announced "the death of copyright"
4
or called for replacing the
current regime with a levy-based system.
5
Others have called for strengthening
1 Pamela Samuelson, Does Copyright Law Need to Be Reformed?, 50 COMM. ACM
19 (2007).
2 Pamela Samuelson, Randall Davis, Mitchell D. Kapor & J.H. Reichman, A Manifesto
Concerning the Legal Protection of Computer Programs, 94 C
OLUM. L. REV. 2308
(1994).
3 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 125 S. Ct. 2764, 2775 (2005),
Justice Souter:
The tension between the two values is the subject of this case, with its claim that
digital distribution of copyrighted material threatens copyright holders as never
before, because every copy is identical to the original, copying is easy, and many
people (especially the young) use file-sharing software to download copyrighted
works. This very breadth of the software’s use may well draw the public directly
into the debate over copyright policy . . . the ease of copying songs or movies
using software . . . is fostering disdain for copyright protection.
4 John Perry Barlow, The Economy of Ideas, WIRED, Mar. 1994, available at http://
www.wired.com/wired/archive/2.03/economy.ideas.html; Eben Moglen, Anarchism
Triumphant: Free Software and the Death of Copyright, F
IRST MONDAY, Aug. 2, 1999,
http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/84/594: "We
are predicting the future in a very limited time sense: we know that the existing
rules, which have yet the fervor of conventional belief solidly enlisted behind them,
are no longer meaningful."
5 Neil Weinstock Netanel, Impose a Noncommercial Use Levy to Allow Free Peer-to-
Peer File Sharing, 17 H
ARV. J.L. & TECH., 1, 35-44 (2003); WILLIAM W. FISHER
III, PROMISES TO KEEP: TECHNOLOGY, LAW AND THE FUTURE OF ENTERTAINMENT
199-258 (2004); Raymond Shih Ray Ku, The Creative Destruction of Copyright:
Napster and the New Economics of Digital Technology, 69 U. C
HI. L. REV. 263,
311-24 (2002); Glynn S. Lunney, The Death of Copyright: Digital Technology,
Private Copying, and the Digital Millennium Copyright Act, 87 V
A. L. REV.
311
2011]
Tailoring Copyright to Social Production
the hold of copyright in the digital age by both expanding the scope of
protection to include new rights
6
and by enhancing the legal remedies.
7
The crisis of copyright in the digital era, however, goes further than
simply posing an enforcement challenge. Digital networks are fundamentally
transforming the production of content in ways that challenge the basic tenets
of copyright law. In this Article, I argue that what is missing from the current
debate regarding copyright law in the digital era is the social dimension.
As numerous scholars have noted recently, digital networks facilitate the
emergence of social production as a major type of content production. In
this environment, individuals are playing a more significant role in the
production of content than they did in the past, and often work together
with varying degrees of coordination. Low communication costs enable
new forms of coordination and collaboration outside of the organizational
structures of firms and states.
8
Coordination is often facilitated by social
media platforms, both commercial and
nonprofit.
9
The emerging structures of
digital production are no longer
confined
to producer/consumer or author/user
relationships. They must be understood as a triangle consisting of a user,
813, 851-58, 910-20 (2001); Richard M. Stallman, Copywrong, WIRED, July 1993,
available at http://www.wired.com/wired/archive/1.03/1.3_stallman.copyright.html;
Elec. Frontier Found., A Better Way Forward: Voluntary Collective Licensing
of Music File Sharing — "Let the Music Play" White Paper (Feb. 2004),
http://w2.eff.org/share/collective_lic_wp.pdf.
6 Such rights include, for instance, the exclusive right of making available which
was tailored to cover online distribution by access. European Parliament & Council
Directive 2001/29/EC, The Harmonization of Certain Aspects of Copyright and
Related Rights in the Information Society, art. 3, 2001 O.J. (L 167) 10, 16. Another
issue is the expansion of copyright to cover any attempt to circumvent digital
copyright protection systems. See Digital Millennium Copyright Act, 17 U.S.C §
1201 (2006); European Parliament & Council Directive 2001/29/EC, supra, art. 6.
7 For Further discussion, see Pamela Samuelson & Tara Wheatland, Statutory
Damages in Copyright Law: A Remedy in Need of Reform, 51 W
M. & MARY
L. REV. 439 (2009).
8 YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION
TRANSFORMS MARKETS AND FREEDOM 99-106 (2006); CLAY SHIRKY, HERE
COMES EVERYBODY: THE POWER OF ORGANIZING WITHOUT ORGANIZATION 25-
54 (2008); D
ON TAPSCOTT & ANTHONY D. WILLIAMS, WIKINOMICS: HOW
MASS COLLABORATION CHANGES EVERYTHING 10-11 (2006); JEFF HOWE,
C
ROWDSOURCING: WHY THE POWER OF THE CROWD IS DRIVING THE FUTURE OF
BUSINESS 71-130 (2008).
9 Niva Elkin-Koren, User-Generated Platforms, in WORKING WITHIN THE
BOUNDARIES OF INTELLECTUAL PROPERTY 111 (Rochelle Dreyfuss, Diane L.
Zimmerman, & Harry First eds., 2010).
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Theoretical Inquiries in Law
[Vol. 12:309
a community of interacting users (the social dimension), and a facilitating
platform (either commercial, NGO, or governmental).
The prevalence of social production and the increase in User Generated
Content (UGC) destabilize some of the fundamental premises of our current
regulatory approaches. The social dimension is currently missing from our
copyright law. Except for rare cases, copyright law is primarily designed
to regulate the relationships of a single owner with other non-owners
and is focused on the sovereignty of the author/owner. Social production,
by contrast, requires us to articulate a matrix of relationships between
the individual, the facilitating platform and the communities and crowds
involved in social production. The old copyright toolkit which is based
on the authorship/ownership paradigm may no longer be sufficient for
addressing these needs. Social production introduces both new stakeholders
with distinctive interests that must be addressed, and an indispensable added
value that must be preserved. The transition from industrial production
to social production transforms the social relations associated with the
production of content
10
and therefore requires adjustment of the institutions
that design such relations. A legal framework for governing the output of
social production should therefore rest on a better understanding of the social
dimension and the risks and opportunities it entails.
This Article closely examines the social dimension of content production
and analyzes the consequences for the governance of content in the social
web. It underlines the limitations of copyright law and points to the
need to rethink our conceptual framework and retool our legal regime.
I argue that the social dimension of online production of content requires a
fundamentally different perspective regarding the governance of access to
creative works. I also offer some insights into how we might reconceptualize
the social dimension of online behavior. The Article proceeds as follows:
Part I describes social production and analyzes the implications for the
stakeholders involved. I focus on three key features of social production
which affect why we create, how we create, and what assets are generated
by the process of creation. Part II explains why social production might be
incompatible with the current copyright regime. In particular, I argue that
social production involves concerns and interests that are not addressed by
copyright law’s focus on establishing the sovereignty of owners over creative
works. Copyright law mainly defines rights against strangers and fails to
provide a framework for managing the rights and interests within a gigantic
group of collaborators. Furthermore, the exclusivity offered by copyright
10 TAPSCOTT & WILLIAMS, supra note 8.
313
2011]
Tailoring Copyright to Social Production
law may undermine social motivation and collaborative production. Finally,
in Part III, I outline some of the challenges for legal policy.
I. SOCIAL PRODUCTION OF CREATIVE CONTENT
A. The Transformation of Content Production
Over the past decade, we have witnessed the
flourishing
of social production
of content. The social production of content is described by the literature as a
process whereby individuals band together to generate informational works
of all kinds through social sharing and exchange.
11
Digital technology has
reduced the cost of generating creative content and communicating it to the
public: the costs of processors, hosting facilities and communication have been
dramatically reduced, making these means available to the masses.
12
This has
enabled individual users to generate content and share it with communities of
their choosing. By using mailing lists, uploading clips to YouTube, managing
a blog or simply posting a comment on one, users are now able to reach out to
a wide audience at almost no cost. Users can take pictures of news events and
make them available worldwide via their cell phones; participants in online
forums are able to share their thoughts and ideas, or rate and review content
11 Yochai Benkler, Freedom in the Commons: Towards a Political Economy of
Information, 52 D
UKE L.J. 1245, 1260 (2003). Benkler argues that social production
has become "a common modality of producing valuable desiderata at the very core
of the most advanced economies — in information, culture, education, computation,
and communications sectors." See Yochai Benkler, Sharing Nicely: On Shareable
Goods and the Emergence of Sharing as a Modality of Economic Production, 114
YALE L.J. 273, 278 (2004) [hereinafter Benkler 2004].
12 See TAPSCOTT & WILLIAMS, supra note 8, at 10-11:
Most people were confined to relatively limited economic roles, whether as
passive consumers . . . or employees trapped deep within organizational
bureaucracies . . . . In all, too many people were bypassed in the circulation
of knowledge, power, and capital, and thus participated at the economy’s
margins. Today the tables are turning. The growing accessibility of information
technologies puts the tools required to collaborate, create value, and compete at
everybody’s fingertips.
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[Vol. 12:309
that is made available online.
13
Information is thus increasingly generated
through collaboration and exchange.
The rise of UGC and social production is transforming the landscape of
content production. UGC stands in sharp contrast to mass production of
content. During the second half of the twentieth century, the production
and mass distribution of content were dominated by the content industry:
mass media, book publishers, record companies and the movie studios.
The production process and the dissemination of the work to the public
were orchestrated by profit-maximizing firms that worked within a market
framework. Communication to the masses used to be costly: the distribution
of physical copies or the broadcast of TV shows required an expensive
infrastructure, one which was owned and operated by broadcasters and
publishers. The content industry invested in producing a master copy of
the work (a novel, a news report, a television series or a movie) and
recouped their investment by selling copies at a monopoly price or by
licensing exclusive broadcast rights. It was therefore necessary for the
content industry to exercise exclusivity over the economic exploitation of
the works it produced.
Nowadays, content is no longer produced solely by firms. It is also
generated by individual users working alone or in collaboration with others.
14
UGC and mass collaboration have become central phenomena characterizing
the Web 2.0 environment.
15
Individual users are playing an ever-increasing
role in the production of content. The availability of low-cost Internet access
enables individual users to communicate their creative materials to a large
audience, thus increasing their potential impact on the cultural scene and the
public sphere. The lower cost of coordination has also led to the emergence
of a new, radically decentralized mode of production, enabling individuals
to collaborate in peer-production of information. As forcefully argued by
Benkler, digital networks have facilitated a dramatic shift from the Industrial
13 Users are also able to manage an online profile on a social network or communicate
with others via social networking sites. According to the IDATE-TNO-IViR study,
searching and e-mailing are the dominant usages on the internet. In 2006, "watching
film, TV or video clips" and "ratings and reviews" have become popular usages on
the internet. Generally, the most dynamic activities are related more to entertainment
content than communication usages, although these usages are also significant. The
data shows an impressive increase in the use of social platforms between 2006
and 2008. See IDATE, TNO & IViR, U
SER-CREATED-CONTENT: SUPPORTING A
PARTICIPATIVE INFORMATION SOCIETY 50-53 (2008).
14 BENKLER, supra note 8 at 106-16.
15 See IDATE, TNO & IViR, supra note 13, and accompanying text.
315
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Tailoring Copyright to Social Production
Era to what he names the "Networked Information Economy" in which
content can be generated by a large number of peers who are not formally
organized by firms or employers.
16
Benkler maintains that the production of
information, knowledge and culture no longer requires management by the
hierarchy of firms.
17
The negligible cost of communicating and processing
information makes coordination and integration cost-effective in a way that
they weren’t before, enabling large-scale collaborations. These features,
Benkler concludes, make it possible for individuals,
nonprofit
organizations,
and groups to play a
significant
role in producing informational works.
18
At the normative level, social production is somewhat controversial.
Some scholars believe that the networked information environment is a step
forward towards a more cooperative social interaction.
19
From this perspec-
tive, the introduction of digital networks dissolved the monopoly of the culture
industry over the means of distribution to the masses.
20
Individual users
have acquired the power to perform what Manuel Castells calls mass self-
communication,
21
by which independent creators more frequently become
the focus of worldwide attention and works created by amateurs attract
16 BENKLER, supra note 8, at 99-106. Yochai Benkler, Coase’s Penguin, or, Linux and
the Nature of the Firm, 112 Y
ALE L.J. 369, 381-84 (2002) [hereinafter Benkler
2002], argues that the more "computers and network connections become faster,
cheaper, and more ubiquitous" so the social production becomes much more
significant. According to Benkler, id. at 404-06, social production emerges due to
several features of the networked information economy: the object of production
(information); the dramatic decline in cost of the means of production (cheap
processors); the low cost of communication; and its availability to creative talent.
17 BENKLER, supra note 8, at 99.
18 Id. at 106.
19 See, e.g., SHIRKY, supra note 8, at 253-59, 293-321; BENKLER, supra note
8, at 99-127, 294-97; Kevin Kelly, New Socialism: Global Collectivist Society
Is Coming Online, W
IRED, May 22, 2009, available at http://www.wired.com
/print/culture/culturereviews/magazine/17-06/nep_newsocialism.
20 I use the term "culture industry" as it was used by the Frankfurt School theorists
Max Horkheimer and T. W. Adorno to describe the commercial mass culture which
marked the industrialization and commercialization of culture under capitalist relations
of production. See T
HEODOR ADORNO & MAX HORKHEIMER, The Culture Industry:
Enlightenment as Mass Deception, in D
IALECTIC OF ENLIGHTENMENT 120 (John
Cumming trans., new ed. 1993) (originally published as Dialektik der Aufklarung in
1944).
21 MANUEL CASTELLS, COMMUNICATION POWER 55 (2009):
It is mass communication because it can potentially reach a global audience,
as in the posting of a video on YouTube, a blog with RSS links to a number
of web sources, or a message to a massive e-mail list. At the same time, it
is self-communication because the production of the message is self-generated,
the definition of the potential receiver(s) is self-directed, and the retrieval of
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Theoretical Inquiries in Law
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large audiences.
22
Individuals thus not only have a better chance of entering
the conversation, but also of initiating conversations and raising awareness
of issues that are essential to their agenda. Seen from this viewpoint, the
shift from an environment dominated by the highly-concentrated culture
industry to a hybrid environment where content is also generated by individual
users and groups is a democratization of the public sphere. It enables wider
participation in cultural production and political discourse and facilitates a
"creative audience" that is able to challenge the meaning of cultural content
produced by the media.
23
The shift from one-to-many to many-to-many mass
self-communication multiplies the entry points into the conversation and
therefore diversifies public discourse.
24
It brings more authentic user voices
into the conversation, cleansed of any commercial influence.
Other scholars are more skeptical. One concern is the ineffectiveness of
peer speech: users can convey their messages, but the traditional mass media
still has an important role in making this speech effective and performing
its watchdog functions vis-a`-vis the government.
25
Another concern is
the deficiencies of the new intermediaries that facilitate social production.
While the distribution of UGC is no longer dependent upon the mass media
and generating collaborative content no longer requires the organizational
structure of firms, social production is still facilitated by intermediaries:
commercial and nonprofit online platforms that perform a wide range
specific messages or content from the World Wide Web and electronic networks
is self-selected.
22 See, for instance, the sensation created by Oren Lavie’s clip "Her Morning
Elegance" which broke YouTube records. Oren Lavie, Her Morning Elegance,
Y
OUTUBE (Jan. 19, 2009), http://www.youtube.com/watch?v=2_HXUhShhmY.
"Her Morning Elegance" also earned a 2010 Grammy Award nomination for
"Best Short Form Music Video." On November 2009, Lavie was announced
the winner of the ASCAP Foundation Award for Best Lyricist. See The Am.
Soc’y of Composers, Authors & Publishers, Two ASCAP Lyricists Named
Recipients of the 2009 ASCAP Foundation Sammy Cahn Award (Oct. 30, 2009),
http://www.ascap.com/playback/2009/10/FOUNDATION/Sammy_Cahn.aspx.
23 Halbert emphasizes the potential social and political value of a creative audience
who can challenge meaning and create the meaning of culture content by posting
or transforming content. Debora Halbert, Mass Culture and the Culture of the
Masses: A Manifesto for User-Generated Rights, 11 V
ANDERBILT J. ENT. & TECH.
L. 921 (2009); see also Niva Elkin-Koren, Making Room for Consumers Under
the DMCA, 22 B
ERKELEY TECH. L.J. 1119, 1138 (2007) (describing the role of the
consumer-author and the consumer-participant in generating culture).
24 See CASTELLS, supra note 21.
25 Neil Netanel, New Media in Old Bottles? Barron’s Contextual First Amendment and
Copyright in the Digital Age, 76 G
EO. WASH. L. REV. 101, 113 (2008).
317
2011]
Tailoring Copyright to Social Production
of functions, from technical enabling to social facilitation. Huge social
media platforms such as Facebook, Twitter, Google/YouTube and Wikipedia
facilitate exchange and collaboration, enabling users to communicate with
friends and colleagues and to establish online communities.
26
Such mega
platforms are dominated by a small number of players, and may suffer from
ills similar to those suffered by mass media.
27
Finally, there is growing concern
about the rights of individuals where speech is facilitated by commercial
platforms that control both access to content and information about the end
users. Some worry about the privacy and autonomy of users,
28
while others
are concerned about the potential exploitation of individual users by social
media platforms, especially when those platforms are commercial players.
29
B. The Attributes of Social Production
Social production is often described as standing in sharp contrast to a
proprietary regime. It is understood not only as a social and economic
phenomenon but also as a legal phenomenon that reflects a nonproprietary
regime, where content is developed through collaborative efforts without any
particular claims for exclusive rights.
30
This approach, however, is somewhat
26 See Elkin-Koren, supra note 9, at 120.
27 See id.; see also James Grimmelmann, Virtual World Feudalism, 118 YALE L.J.
P
OCKET PART 126 (2009); OECD, PARTICIPATIVE WEB: USER-CREATED CONTENT
(2007), http://www.oecd.org/dataoecd/57/14/38393115.pdf.
28 Lauren A. Gelman, Privacy, Free Speech, and ‘Blurry-Edged’ Social Networks, 50
B. C. L. REV. 1315 (2009).
29 Trebor Scholz, Market Ideology and the Myth of Web 2.0, FIRST MONDAY,
Mar. 3, 2008, http://www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view
/2138/1945; see also Christian Fuchs, Information and Communication Technologies
and Society: A Contribution to the Critique of the Political Economy of the
Internet, 24 E
UR. J. COMM. 69, 82 (2009). Fuchs argues that users who generate
content on advertisement-based free online platforms are subject to surveillance
and become a commodity sold to advertisers. Personalized advertisement, he
argues, is an expression of the "society of control," which activates individual
users to continuously participate in and integrate themselves into the structures of
exploitation. Thus, he argues, "[t]he category of the prosumer commodity/produser
commodity does not signify a democratization of the media towards participatory
systems, but the total commodification of human creativity."
30 In his book, Benkler defines social production as including content "that is not
based on exclusive proprietary claims, not aimed toward sales in a market for either
motivation or information, and not organized around property and contract claims
to form firms or market exchanges." B
ENKLER, supra note 8, at 105.
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Theoretical Inquiries in Law
[Vol. 12:309
circular, as it relies on the governance of the content to define the processes
of content production.
31
Since my purpose here is to analyze the adequacy of the current regime
and the extent to which it serves the needs of social production, it is first
necessary to characterize social production independent of the governing
structures which were designed to manage it. What features make the
emerging mode of production "social"? I focus here on three key features
of social production which affect why we create, how we create, and what
assets are generated by the process of creation. Social production, I argue, is
largely driven by social motivation. This mode of production is collaborative
in nature and is generated by interaction between members of a social group.
Finally, the output of social production goes beyond the production of the
content itself. Social production also generates social capital and political
outcomes.
32
1. Social Motivation
A key feature of social production is social motivation. The industrial
production of content was based on monetary incentives, with firms
designed to maximize profits. Individual users, however, create for a
wide range of reasons: self-expression, creative satisfaction, a desire to
establish online reputation or a wish to strengthen one’s self-esteem.
33
While artists have always been motivated to create by a wide variety
of non-monetary incentives,
34
the industrial production of content shaped
creative processes within a market framework, emphasizing considerations
of potential profitability and economic constraints. When individuals and
communities begin to play a more
significant
role in the production of content,
they bring a variety of motivations to the forefront.
35
31 Moreover, many classic examples of social production, such as Free Software and
Wikipedia, rely on copyright for governance, even though the licensing scheme of
free software (the General Public License (GPL)) is using copyrights in a subversive
manner.
32 See Steven J. Horowitz, Designing the Public Domain, 122 HARV. L. REV. 1489
(2009) (arguing that social production generates some added value such as a sense
of belonging, relationships, identity and community).
33 See IDATE, TNO & IViR, supra note 13, at 150-54; Benkler 2004, supra note 11,
at 279-81, 321-28.
34 Diane Leenheer Zimmerman, Authorship Without Ownership: Reconsidering
Incentives in a Digital Age, 52 D
EPAUL L. REV. 1121, 1136-37 (2003).
35 Individuals, Benkler argues, "are not monolithic agents." They are motivated by
monetary rewards, but also by social and psychological needs. B
ENKLER, supra note
8, at 98-99.
319
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Tailoring Copyright to Social Production
Human creativity involves a complex matrix of motivations and
incentives, often working simultaneously to induce or halt a particular
behavior. Benkler, for instance, lists intrinsic hedonic rewards and socio-
psychological rewards, which are a function of the cultural meaning
associated with the act of creation, as non-monetary incentives to create,.
These include the benefits from acknowledgment and reputation, but also
social relations such as a notion of belonging and friendship.
36
Horowitz
offers a different taxonomy of intrinsic motivation, focusing on three types
of motivations: empowerment, community, and fairness.
37
Empowerment
emphasizes autonomy and competence and a sense of effective participation
38
;
community focuses on the need to connect to others; and fairness focuses on
maintaining a fair system which is perceived as fair by all participants.
39
There are different ways of classifying non-monetary motivations. For
the purpose of my current inquiry, it is useful to distinguish between
social motivation and other non-monetary incentives.
40
Such an analysis
could help us identify the social dimension that is often missing from
policy discussions related to the information environment. Social motivation
represents a special type of non-monetary motivation that arises from a social
context — a context that transcends the individual creator. The distinction
offered by Peddibhotla and Subramani between "other-oriented" and "self-
oriented" motives is useful for understanding this special quality of social
motivation.
41
"Self-oriented motives" refers to intrinsic motivations such as
fun, self-expression or personal development, and also to utilitarian motives.
"Other-oriented motives" refers to social
affiliation,
altruism, and reciprocity.
While self-oriented motives can sometimes serve as a substitute for monetary
36 Id. at 92-99.
37 Horowitz, supra note 32, at 1499-503. These three intrinsic motivations are based
on the self-determination theory of psychologists Edward Deci and Richard Ryan.
Edward L. Deci & Richard M. Ryan, The "What" and "Why" of Goal Pursuits:
Human Needs and the Self-Determination of Behavior, 11 P
SYCHOL. INQUIRY 227
(2000). Horowitz proposes three strategies for promoting the public domain: (1)
empowering the individual, (2) connecting to a community, and (3) maintaining
fairness in the system. Horowitz, supra note 32, at 1499.
38 Id. at 1499, 1500-01.
39 Horowitz therefore concludes that "[t]o best support intrinsic incentives to produce
information, the public domain ought to empower individuals, connect them within
a community, and maintain a fair system." Id. at 1503.
40 Naren B. Peddibhotla & Mani R. Subramani, Contributing to Public Document
Repositories: A Critical Mass Theory Perspective, 28 O
RG. STUD. 327 (2007).
41 I use "incentives" "motives" and "motivations" interchangeably throughout the
Article.
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Theoretical Inquiries in Law
[Vol. 12:309
rewards, social motivation cannot, as it reflects a continuum, an ongoing
process, rather than a single, one-time exchange with an indistinct party.
Social motivation involves a relationship with a concrete or partially imagined
community. The act itself — sharing a photo, discussing the news — derives
its meaning from the actual engagement and interaction with others. These
aspects of social motivation are not reducible to a market exchange and, as I’ll
further explain below, might be especially important for copyright policy.
Self-oriented motives focus on the benefits that people derive from
creative activity. First and foremost there is a natural drive to create. People
are creative beings.
42
Creation often reflects a human desire, a passion to
act upon the world, to constitute something from nothing.
43
The rich online
repository of UGC — chats, contributions to forums, posts on blogs, clips
shared on YouTube — reflects the human longing to engage with the world,
to create meaning. Creativity is often driven by intrinsic satisfaction. Poets,
sculptors and musicians created monumental works of art long before there
was any intellectual property system offering them a legal right over their
creations; they created simply for the sake of making art.
44
Writing, playing
music and taking pictures may be motivated by creative passion, pleasure,
satisfaction and often simply by fun. Other types of passions — ego, a hunger
for power, competition, confrontation — may also drive creation.
45
Although it shares some qualities with self-oriented motives, social
motivation is fundamentally other-oriented. While self-oriented motives
focus on the individual creator, in other-oriented motives the social context
plays a key role.
46
Users who generate and distribute content in social media
platforms often engage in a social activity such as sharing opinions (as in
42 See Moglen, supra note 4; Benkler 2002, supra note 16, at 424-25.
43 See MARTIN BUBER, Education, in BETWEEN MAN AND MAN 89 (Ronald Gregor
Smith. trans., 1955) (arguing that humans are born with a capacity of creative
powers, and a desire to create something from nothing); see also Rebecca Tushnet,
Economies of Desire: Fair Use and Marketplace Assumptions, 51 W
M. & MARY
L. REV. 513, 522-27 (2009) (analyzing creators’ own accounts of their creative
experiences and discussing authors’ self-reported experiences of creativity).
44 See Zimmerman, supra note 34.
45 In a widely cited blog, Bosworth describes a two-stage reward system among
Wikipedians: regular users, who gain small rewards for basic participation, and
obsessive administrators who compete to gain power. See Posting of Alex Bosworth
to SWiK, Why Wikipedia Works, http://swik.net/social-Software+user:alex (Apr.
13, 2006).
46 See Andrea Ciffolilli, Phantom Authority, Self-Selective Recruitment and Retention
of Members in Virtual Communities: The Case of Wikipedia, F
IRST MONDAY,
Dec. 1, 2003, http://firstmonday.org/issues/issue812/ciffolilli/index.html. Ciffolilli
distinguishes between personal and social motivations of Wikipedians. According
321
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blogs), sharing skills and knowledge (as in forums), rating
films
and articles, or
tagging photos and sharing videos (as in social networks). Sharing something
you have created yourself or simply something you have watched or otherwise
experienced is a type of social interaction that adds a layer of meaning to the
experience of reading and writing. Individual users as social beings may
simply want to interact, communicate, connect with other people, be heard
by their fellow users, feel they belong and
affiliate
themselves with groups.
47
Engaging in a conversation is one aspect of social motivation.
48
Creative
activities often aim at expressing oneself in a conversation with others. The
interactive nature of digital networks allows users to gain the attention of their
fellow users, to be heard, attended to, and receive some feedback. Thus, it
may turn self-expression simply for the sake of intrinsic satisfaction into a
communicative act which engages with others.
Another aspect of social motivation is a sense of belonging to a community.
For instance, a study of
firm-hosted
technical support for online communities
shows that the customers’ willingness to contribute to such online support
services is influenced by a customer’s penchant for online interaction,
feeling of commitment to the community, and the perceived informational
value.
49
Another example is Wikipedia. Several studies exploring why people
write and edit entries on Wikipedia have focused on Wikipedia’s communal
nature.
50
A sense of community
reflects
a commitment of community members
to Ciffolilli, social motivations involve a "desire to take part in the production of a
collective good, a need for belonging, a need to support a specific community."
47 Id.; LEE RAINIE, JOHN HORRIGAN, BARRY WELLMAN & JEFFREY BOASE,
P
EW INTERNET & AMERICAN LIFE PROJECT, THE STRENGTH OF INTERNET
TIES (2006), available at http://www.pewinternet.org//media//Files/Reports/
2006/PIP_Internet_ties.pdf.pdf; Barry Wellman et al., The Social Affordances of
the Internet for Networked Individualism, J. C
OMPUTER-MEDIATED COMM., Apr.
2003, http://jcmc.indiana.edu /vol8/issue3/wellman.html.
48 Erickson and Herring introduced the notion of "persistent conversation."
See Thomas Erickson & Susan C. Herring, Persistent Conversation: A
Dialog Between Research and Design, in 4 H
ICC PROCEEDINGS OF THE 38TH
HAWAII INTERNATIONAL CONFERENCE ON SYSTEM SCIENCES 106 (2005), available
at http://www.computer.org/portal/web/csdl/doi/10.1109/HICSS.2005.491 (arguing
that persistent conversation carries social and ethical consequences deriving from
the creation of permanent records of interactions that used to be ephemeral).
49 Caroline Wiertz & Ko de Ruyter, Beyond the Call of Duty: Why Customers
Contribute to Firm-Hosted Commercial Online Communities, 28 O
RG. STUD. 347,
349-76 (2007).
50 See, e.g., Ciffolilli, supra note 46 and accompanying text; Sheizaf Rafaeli & Yaron
Ariel, Online Motivational Factors: Incentives for Participation and Contribution
322
Theoretical Inquiries in Law
[Vol. 12:309
towards other members of the community and also to the group as a whole.
51
It
is often based on reciprocity, which is the tendency to contribute for the benefit
of those from whom you have
benefited
in the past.
52
Accordingly, individuals
sometimes produce content (write reviews, edit entries on Wikipedia) to
reciprocate for the benefit they have received from their fellow users. This
type of reciprocity is a strong social motivation, as it encourages further
contribution by individuals in a particular social context where it becomes the
norm.
Several studies have focused on social interaction, defined as the desire
for affiliation and belonging.
53
One study of early experimentation with
the crowdsourcing site Google Answers showed that even when significant
monetary rewards were involved, the economic incentive was strongly
moderated by social variables.
54
The process of social production is focused
not on individuals, but on groups and communities. This also changes the
nature of consumption. The experience of content becomes extremely social:
we watch videos rated by our peers, listen to music recommended by our
contacts and seek to share content with our different communities. Social
Plugins such as Facebook’s Like Button, Recommendations and Activity
Feed allow users to see what their friends have liked, commented on or shared
on sites across the web.
55
In 2010, participating in social networking sites
in Wikipedia, in PSYCHOLOGICAL ASPECTS OF CYBERSPACE: THEORY, RESEARCH,
A
PPLICATIONS 243 (A. Barak ed., 2008).
51 Rafaeli and Ariel argue that "[o]ne of the strongest motivations to participate and
contribute to a community is users’ sense of community." See Rafaeli & Ariel,
supra note 50, at 257. They use a definition of a "sense of community" offered
by McMillan and Chavis. David W. McMillan & David M. Chavis, Sense of
Community: A Definition and Theory, 14 J. C
OMMUNITY PSYCHOL. 6, 9 (1986)
("[A sense of community] is a feeling that members have of belonging, a feeling
that members matter to one another and to the group, and a shared faith that
members’ needs will be met through their commitment to be together.").
52 See Naren B. Peddibhotla & Mani R. Subramani, Contributing to Public Document
Repositories: A Critical Mass Theory Perspective, 28 O
RG. STUD. 327 (2007),
available at http://oss.sagepub.com/content/28/3/327.full.pdf+html.
53 Sheizaf Rafaeli, Tsahi Hayat & Yaron Ariel, Knowledge Building and Motivations
in Wikipedia: Participation as "Ba," in C
YBERCULTURE AND NEW MEDIA 51
(Francisco J. Ricardo ed., 2009).
54 Sheizaf Rafaeli, Daphna Raban & Gilad Ravid, How Social Motivation Enhances
Economic Activity and Incentives in the Google Answers Knowledge Sharing
Market, 3 I
NT’L J. KNOWLEDGE & LEARNING 1 (2007).
55 See Facebook, Social Plugins, http://developers.facebook.com/plugins (last visited
Oct. 1, 2010).
323
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Tailoring Copyright to Social Production
was the most popular online activity.
56
We increasingly seek to engage with
content rather than simply acquire access to a copy of it. A common example
is the reading of news reports together with the stream of responses. Another
example is the remixing and mashups of videos and music.
57
The information
flows
created by such interactions often become part of the content itself. Web
users are not interested in UGC just because it provides a fresh perspective or
is viewed as more reliable and unbiased; users are also seeking participation
in a community. A recent study shows that users are willing to pay a premium
for the opportunity to participate and contribute to a community.
58
Social motivation must be viewed within a rich matrix of different
motivations to create, including monetary rewards. The Social Web offers
a variety of economic incentives. Users can monetize their activities
and generate revenues from the content they create by incorporating
advertisements in content and on sites; charging subscription fees; licensing;
charging commission on UGC sales; and raising sponsorships, donations
and public funding.
59
Some users, such as those in open source companies,
are extracting revenues by charging for additional goods and services, selling
support consulting services and training.
60
Others may use the free distribution
56 See Nielsen Study: Nielsenwire, What Americans Do Online: Social Media and Games
Dominate Activity (Aug. 2, 2010), http://blog.nielsen.com/nielsenwire/online
_mobile/what-americans-do-online-social-media-and-games-dominate-activity/.
57 LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID
ECONOMY (2008).
58 Gal Oestreicher-Singer & Lior Zalmanson, Paying for Content or Paying for
Community? The Effect of Consumer Involvement on Willingness to Pay
on Media Web Sites (Jan. 14, 2010) (unpublished manuscript), available at
http://ssrn.com/abstract=1536768.
59 See OECD, supra note 27 (describing several business models for monetizing UGC:
charging viewers for services, advertising, licensing of content and technology to
third parties, and selling goods and services); IDATE, TNO & IViR, supra note
13, at 98-118. According to this study, most UGC services rely on advertising
revenues. Forecasts indicate that in 2010, the Internet will be the number three
medium in terms of advertizing investments worldwide (behind TV and the
written press). Other business models include subscription fee and pay-content.
Users can earn an income from their creation either directly, through the sales of
their content, or indirectly, by establishing a professional reputation through their
postings. According to a recent study, most bloggers have some way to generate
revenue from their blogs: advertising; search ads; display ads; affiliate marketing;
paid posting; being a spokes-blogger; rich media ads. Posting of Dave White
to Technorati, Blogging For Profit, http://technorati.com/blogging/article/day-4-
blogging-for-profit/ (Oct. 13, 2009).
60 See Kaj Arno, Dual Licensing — A Business Model from the Second Generation
of Open Source Companies, in H
OW OPEN IS THE FUTURE? ECONOMIC, SOCIAL
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Theoretical Inquiries in Law
[Vol. 12:309
of content for self-marketing. Photographers may post their pictures on Flickr
in order to share their experiences with friends and colleagues, but at the
same time may hope they will be able to cash in on their online reputation.
Users might not be engaging in creative processes just for the money — but
this doesn’t mean that they never profit from their creativity. In other words,
even though content created by users is often not generated for profit, it is
increasingly being shaped by market forces. What makes UGC different,
however, is the fact that in contrast to industrialized content, it is not produced
for the sole purpose of maximizing profits, even though it can be distributed
in a commercial setting and may, in fact, generate revenues.
The online environment creates new types of financial pressures for
participating users. Users are facing the rising costs of establishing an
online reputation, managing an online presence and maintaining their
online visibility in different social media platforms. These functions may
require large investments in search enhancement, website optimization,
and viral promotion. As individual creators move to the forefront of
culture production, they must compete with commercial players for online
exposure and users’ attention. To some extent, individuals are adopting
promotional techniques to develop their "brands," control their identities,
and monetize the informational value they add, that were formerly used only
by commercial entities.
61
The presence of monetary interests is further strengthened by the fact
that social media platforms often generate revenues from social motivation.
They sometimes share advertising revenue with users by offering rewards
for high ratings or special performance.
62
Users are increasingly being
recruited by marketers to promote products, services or political agendas
by viral advertising and peer promotion in social networks. Bloggers and
users who have been identified as emerging social leaders might be paid by
sponsors for promoting products by posting product reviews, generating high
AND CULTURAL SCENARIOS INSPIRED BY FREE AND OPEN SOURCE SOFTWARE 479
(Marleen Wynants & Jan Cornelis eds., 2005). But see Ashlee Vance, Open Source
as a Model for Business Is Elusive, N.Y. T
IMES, Nov. 30, 2009, at B1.
61 Matthew Creamer, Optimize Me: A Reporter’s Journey into the World of
SEO and SEM, A
DVERTISING AGE, Dec. 3, 2007, available at adage.com/
digital/article?article_id=122344 (describing the use of social media platforms
by a journalist to optimize his online exposure).
62 Advertising services such as Google AdSense automatically deliver targeted ads to
blogs and personal homepages, sharing the collected revenues from advertising with
the hosting website. Google, Google AdSense, https://www.google.com/adsense/
(last visited Oct. 1, 2010).
325
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ratings or offering tips on products and services.
63
Commercial platforms may
also integrate users’ contributions into products or services provided to their
respective customers.
64
The coexistence of social motivation and commercial interests may
destabilize social motivation and cause tensions at three levels: first at
the individual level; second, among users; and finally, between users and
social media platforms. At the individual level, the mixture of for-profit
and nonprofit activities motivated by monetary and social interests might
be confusing. Monetary incentives may sometimes undermine intrinsic
motivation. Studies show that human creativity is primarily driven by
intrinsic motivation and that monetary rewards can sometimes actually
stifle creativity.
65
Second, the introduction of monetary rewards may interfere
with the sense of social solidarity which provides the basis for engagement
in social production, thereby reducing the motivation to collaborate. A third
dimension of the clash between social motivation and monetary rewards is the
relationship between users who participate in generating content and the social
media platforms that facilitate such processes. The introduction of monetary
rewards may instill distrust and suspicion between users and platforms.
66
63 Social leaders are determined based on users’ "social graph," that is the number
of connections and the volume of communications on social network sites. See
Michael R. Solomon, The Truth About What Customers Want: They Think Your
Product Sucks — But That’s Not a Bad Thing, F
IN. TIMES, Nov. 5, 2008, available at
http://www.ftpress.com/articles/article.aspx?p=1252171; Ellen P. Goodman, Peer
Promotion and False Advertising Law, 58 S.C. L. R
EV. 683, 669-706 (2007).
64 Some users’ input is incorporated into the presentation of traditional media, such as
CNN’s iReporter. Another example is Amazon’s Mechanical Turk (MTurk), which
creates a crowdsourcing marketplace where users can sign-up for tasks that cannot
be performed by computers (Human Intelligence Tasks — "HIT") for monetary
payments. Requesters post tasks (called HITs) such as choosing the best among
several photographs or writing product descriptions. Providers browse among
existing tasks and complete them for a monetary payment set by the Requester. See
Amazon Web Service, Amazon Mechanical Turk, http://aws.amazon.com/mturk/
(last visited Oct. 1, 2010).
65 Eward L. Deci, Richard Koestner & Richard M. Ryan, A Meta-Analytic Review of
Experiments Examining the Effects of Extrinsic Rewards on Intrinsic Motivation,
125 P
SYCH. BULL. 627 (1999).
66 Consider, for instance, the decision of the video storage Metacafe´ to cancel its
Producer Rewards Program, which offered monetary rewards per 1000 views to
producers of videos which passed Metacafe´’s strict guidelines and achieved at
least 20,000 worldwide views at a minimal ranking. Metacafe´ Termination of the
Producer Rewards Program (May 6, 2007), http://blog.metacafe.com/?s=rewards.
Earlier changes to the program raised doubts regarding the intentions of the
platform. See Mark ‘Rizzn’ Hopkins, Metacafe Changes Producer Rewards; Users
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Theoretical Inquiries in Law
[Vol. 12:309
Indeed, several scholars have suggested that platforms are exploiting the free
content and unpaid labor of users.
67
This could further compromise social
motivation.
As I shall further discuss below, these threats to social motivation can be
partially addressed by legal policy.
68
2. Collaboration
Another aspect of social production is the social nature of the process
of creation through interaction and collaboration. The collaboration with
others is often what drives someone to join the productive initiative, and
studies show that collaboration plays an important role in enhancing social
motivation.
69
Digital networks lower the cost of coordinating joint efforts, thus enabling
a massive number of users to join forces in creating new collaborative works.
The ease of linking together and coordinating individual efforts facilitates
the emergence of new types of group actions.
70
Consequently, not only
individual users but also groups of users working together are playing a much
bigger role in generating and distributing new types of content.
71
Collaborative
initiatives have become quite prominent. Classic examples are programmers
contributing to code and fixing security bugs in free software, users editing
entries on Wikipedia and collaborative tagging and ranking generated by users
of YouTube and Digg.
The boundaries of the collaborating groups are dynamic. Often, people
may join the group only to leave it instantly. While some collaborative
activity is ad hoc, such as political campaigns prior to elections, other types
of collaboration are long term. Large-scale collaborations are feasible as
long as diverse contributions can be pooled and merged into a single effort.
72
Large-scale collaboration involving a massive number of contributors is not
Complain, MASHABLE, Feb. 12, 2008, http://mashable.com/2008/02/12/metacafe-
payout-changes/.
67 See Scholz, supra note 29.
68 See infra notes 113-18 and accompanying text.
69 See Xiaoquan (Michael) Zhang & Feng Zhu, Intrinsic Motivation of Open Content
Contributors: The Case of Wikipedia (Dec. 2006) (paper presented at the Workshop
on Information Systems and Economics (WISE), Chicago, Illinois, Dec. 9-
10, 2006), available at http://digital.mit.edu/wise2006/papers/3A-1_wise2006.pdf
(analyzing the dynamics among contributors, using textual analysis, to show that
the collaborative process in Wikipedia enhances incentives to contribute).
70 SHIRKY, supra note 8, at 50-51.
71 BENKLER, supra note 8, at 99-106.
72 Jessica Litman, Sharing and Stealing, 26 COMM. & ENT. L.J. 1 (2004).
327
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Tailoring Copyright to Social Production
only cost-effective, but also becomes necessary in order to compete for users’
attention and to make an impact in the online information smog.
Online coordinating tools enable collaboration without a legal
organizational structure coordinating the tasks undertaken by different
contributors. Contributors are not working under any legal duty to perform
particular tasks, and are usually acting voluntarily. The extraordinary success
of colossal collaborative projects such as Linux and Apache demonstrates
that a complex system on a large scale can be designed and maintained by
a sizeable group of unorganized collaborators in a nonproprietary setting.
At the same time, however, collaborative initiatives are often facilitated by
social media platforms. These platforms perform a wide range of functions,
from technical enablement to social facilitation, including supporting,
hosting, searching, aggregating, filtering and diffusing UGC.
73
The character of collaboration varies. Collaboration can take the form
of teamwork (such as in Wikipedia), or individual contributions which are
accumulated into a single collage. Shirky identifies three levels of group
action which differ according to the strength of the obligations among the
individuals in the group: Sharing, Cooperation, and Collective Action.
74
Sharing represents the lowest level of social commitment; at this level,
individuals knowingly share their works with the group (or with a selective
list of individuals). Content in this type of group action can be produced
by the aggregated value of independent contributions, such as a collage of
pictures on Flickr or Picasa or a video repository such as YouTube. Ratings
provided by users of these platforms may promote this group action to the
next level.
Cooperation is the next, higher level, of group action. It involves mutual
synchronization of the individual’s behavior and the behavior of other group
73 A user posting on her own blog might have to use a hosting service and an Internet
Access Provider, as well as search engines and location tools to enhance the content
exposure. But even webblogs might be considered a platform. First, a blog in itself
may host UGC (comments by others) and in this sense it might also function as
an online platform. Second, even though it is relatively easy to install blogging
software on a server to enable blogging, using a blog hosting service like Blogger
makes it easier (by removing the technical burden of maintaining a hosting account
and a software application).
74 SHIRKY, supra note 8, at 49. The focus on groups is somewhat misleading. Indeed,
the human desire to interact, communicate, or validate each others’ experiences is
innate. At the same time, however, one must be careful in distinguishing between a
group as a distinct category — namely an entity that is independent of its particular
members, and a simple interaction among individuals (either intimate or public).
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Theoretical Inquiries in Law
[Vol. 12:309
members.
75
The intentional actions of the individuals involved requires that
the group members — with whom one must coordinate her actions — are
concretely defined. This involves a higher level of reciprocity; therefore, this
level of group action creates a group identity.
Collective Action is the highest level of group effort, as it assumes that
decisions adopted by the group become binding upon all the individual
members.
76
Collaborative production can create tensions among individuals
and between individuals and the group, as the process requires making
collective decisions about the exploitation of the collaboration’s output.
When creative works are generated collaboratively, questions arise regarding
the joint-management of such a collaborative production. How should the
outcome of social production be managed? Who shall have access to it and
under what terms? Who is entitled to credit and how? Who has the right to
transform, edit and improve the content? Who can make binding decisions on
how this outcome will be used or whether it will be commercially exploited?
The lack of a formal organizational structure makes it difficult to achieve
collective action in a large-scale collaboration. Users are working together
voluntarily with no hierarchy and without any single entity that is authorized
to make decisions about how to exploit the output of such collaboration.
Furthermore, no single entity adequately represents either the views of each of
the collaborating users or, when appropriate, the choice of the group as a whole.
Collaboration in making binding decisions regarding the future use of content
requires that some voice be given to the individual users who are involved in
the joint effort. At the same time, however, as a joint project, some weight
should be given to the shared agenda of the coordinated efforts, and adequate
procedures should be adapted in order to negotiate such an agenda.
The lack of a formal organizational structure does not mean that the
coordinating parties are working in a normative vacuum. Relationships
among the collaborating users are often shaped by the design, economic
models and legal strategies of the social media platforms which facilitate
such coordination. Coordinating tools are not neutral.
77
Their design
and architecture often determine the nature of collaboration and shape
the relationships among users. For instance, the platform architecture may
75 Id. at 49-50 ("changing your behavior to synchronize with people who are changing
their behavior to synchronize with you").
76 Id. at 53. Shirky argues that this type of group effort, where groups act on behalf
of, and share consequences for, all of its members, is the hardest to achieve and is
still relatively rare.
77 See Helen Nissenbaum, Values in Technical Design, in ENCYCLOPEDIA OF SCIENCE,
T
ECHNOLOGY AND ETHICS, at lxvi (Carl Mitcham ed., 2005). But see SHIRKY, supra
note 8, at 46 (arguing that platforms are neutral and facilitate uncoordinated group
329
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determine whether collaborating parties must be identified or can choose to
contribute anonymously to the conversation. The architecture could further
define
whether content can be transferred and thus become useful outside the
facility.
78
Collaboration is further subject to a variety of legal and social norms
such as laws, licenses and Terms of Use (ToU). These are sometimes
defined
by
the facilitating platforms and sometimes attached to a particular content.
79
To
further understand the nature of online collaboration it is therefore necessary
to identify the mechanism of design (i.e., interfaces, language, protocols) and
law (i.e., copyrights, ToU) which shape the behavior of individuals and groups
in social production.
Collaborative production is a dynamic process of sharing and interacting
in order to construct something together. The output itself is also dynamic
and is collectively shaped through the ongoing contributions of users. The
"romantic author" of the eighteenth century has made way for the social
author of social media.
80
This entails a new
definition
of work of authorship
and a new approach to authorship that changes the focus from the individual
to the social. The glue which ties the individual efforts together is the social
context. At the same time, however, the lack of a formal organizational
structure might make it difficult for contributing authors to agree on the
shared norms that apply to their joint effort and, moreover, to adapt the
rules which govern the use and exploitation of works to the changing
circumstances. As I discuss in the following Part, copyright law that governs
action: "Flickr is simply a platform; whatever coordination happens comes from
the users and is projected onto the site.").
78 For instance, Picasa, Google’s Web Album which allows organizing, editing,
tagging and sharing photos, does not allow users to transfer their tagged
pictures with the metadata from Picasa to other image hosting sites such as
Flickr. For Facebook’s strategy see Fred Vogelstein, Great Wall of Facebook:
The Social Network’s Plan to Dominate the Internet — and Keep Google Out,
W
IRED, June 22, 2009, available at http://www.wired.com/techbiz/it/magazine/17-
07/ff_facebookwall.
79 For the plurality of norms applied to UGC, see Niva Elkin-Koren, Governing
Access to Users-Generated-Content: The Changing Nature of Private Ordering in
Digital Networks, in G
OVERNANCE, REGULATIONS AND POWERS ON THE INTERNET
(E. Brousseau, M. Marzouki & C. Me´adel eds., forthcoming 2011).
80 At a more theoretical level, it has long been argued that creative processes are not
played out in isolation — that authors always build upon the input of previous
authors and that creative works are, in fact, meaningless outside of a social context.
This view of creativity as a joint effort of a community to generate information
flows within a cultural matrix is assuming a more visible presence in the online
environment, as reflected by initiatives such as Wikipedia.
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Theoretical Inquiries in Law
[Vol. 12:309
the exploitation of creative works does not provide an adequate framework
for addressing these challenges. It confers on each of the contributing
individuals the power to decide how to exploit their contribution and, when
their contributions are inseparable, it forms a legal partnership among them.
3. The Outcome of Social Production and Social Capital
Social production not only generates content through coordination among
peers, but may also enhance the social nature of existing communities.
Collaboration in generating content could become a community-building
tool. This process involves both personal and public conversations
throughout the editing and the continuing revision of works. It involves
various choices on issues such as which content to include and in what
order of priority to include it, and whether to remove or rewrite a particular
entry. These choices involve some shared decision-making mechanisms.
The collaborating parties share some views and expectations regarding their
activity. During the process, they are generating shared norms regarding
contributing and sharing materials and certain conventions regarding editing
and revising content.
Rafaeli and Ariel analyze the various elements that create a person’s
sense of community. A community, they argue, is sensed "through
membership, influence, integration, and fulfillment of needs, and shared
emotional connection."
81
Membership requires
identification
with and a sense
of belonging to the community, and a clear definition of the community
boundaries that indicate who belongs to the community and who is considered
an outsider.
Influence
requires that members feel empowered to
influence
the
actions of the community, and at the same time that the community also has
some
influence
over the actions of its members. Shared emotional connection,
it is argued, depends on a shared community history which is often reflected
in a sense of shared identity ("we," "us").
82
Social production often facilitates institutions that strengthen the sense
of belonging to a community, such as conflict management and dispute
resolution. Such institutions are currently evolving in the social web. One
example is Wikipedia’s dispute resolution system. Hoffman and Mehra
studied this dispute resolution system and argue that it serves to weed
out problematic users while encouraging potentially productive users to
continue to dispute with one another, which is at the essence of the
open wiki platform. Thus, they argue, the dispute resolution system is
81 See Rafaeli & Ariel, supra note 50, at 258.
82 Id.
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function for the community.
83
Another example is Facebook’s announcement
of a Bill of Rights and Responsibilities to allow users to comment on
and participate in shaping the policies which govern the social network.
The announcement followed a storm of public outrage in response to a
unilateral change in Facebook’s terms of use.
84
This participatory procedure
for collective action was apparently necessary in order to regain legitimacy for
the norm-making process adopted by the platform. Facebook discovered that
unilateral redrafting of the ToU is unacceptable for its community of users and
is viewed as illegitimate. A recent example of another community institution is
the experimental community court of eBay, which enables any eBay member
to appeal against negative feedbacks she has received on eBay which she
believes were unfair. The online jury consists of 21 randomly selected eBay
members.
85
Taken together, these features are community-building tools. From this
perspective, Wikipedia, for instance, could be viewed as encompassing more
than simply tools for producing encyclopedia entries. It is a community
of editors and readers who share a communal identity that is inherently
argumentative.
86
Similarly, eBay could be viewed as more than simply an
e-commerce arena for buyers and sellers, but as offering membership in a
business community with shared norms regarding business best practices and
social sanctions.
All these aspects of social production — social motivation, the
collaborative nature, and the social capital generated by this process —
may have consequences for the debate over the best way to govern
social production. How should the social dimension of co-production by
an unorganized crowd be reflected? What mechanisms should be applied
83 David A. Hoffman & Salil Mehra, Wikitruth Through Wikiorder, 59 EMORY L.J.
151 (2009) (describing the evolution of this institution from an informal exchange
of views, through mediation, and into an Arbitration Committee which applies
fact-finding procedures and generates decisions based on policy and law, which
constitute a virtual Wiki-common law).
84 Posting by Mark Zuckerberg to Facebookblog, Update on Terms,
http://blog.facebook.com/blog.php?post=54746167130 (Feb. 17, 2009).
85 After submitting the appeal, the person who left the controversial feedback is then
asked to justify himself. The appellant has a chance to respond to the statement,
after which the case is put before a jury of eBay members who vote on the case.
The jury is authorized to remove the unfair feedback from the site. See eBay,
Community Court FAQs, http://www.ebaycourt.com/cc/FAQ.jsf (last visited Aug.
9, 2010).
86 See Rafaeli, Hayat & Ariel, supra note 53 (arguing that Wikipedia is a dynamic,
virtual knowledge-building community and not simply a repository of information).
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to manage the outcome generated by social production? Before I turn to
discussing these issues, I will describe the limits of the current copyright
law as a regime for managing social production.
II. SOCIAL PRODUCTION AND LEGAL POLICY
Legal policies related to the social web should aim at promoting social
production by nurturing social motivation, facilitating collaboration, and
increasing social capital. Copyright law, which was tailored to facilitate the
business models of the content industry, is incompatible with the emerging
environment of social production and fails to address its special needs.
In this Part, I describe some of the limits of current copyright law in
promoting social production. In short, I argue that the tenets of copyright
law stand in fundamental tension with social production. The exclusivity
offered by copyright is sometimes unnecessary and may often undermine
social motivation and collaborative production. I further argue that the legal
toolkit offered by copyright law fails to address either the special needs of
large-scale collaboration or the distinctive interests which require protection
in the social web. Copyright law mainly defines rights against strangers and
fails to provide a framework for managing the rights and interests within a
gigantic group of collaborators.
A. The Limits of Copyright
1. Management of Collaborative Creation
A serious shortcoming of copyright law is that it fails to provide an
organizational structure for social production in large-scale collaboration.
Copyright law defines rights against strangers — rights of owners against
non-owners. It entitles the owner to stop the unlicensed use of the work by
potential exploiters. It lacks a framework for addressing the rights and duties
of collaborators towards one another regarding their respective contributions
and the exploitation of their joint effort. The law does not provide sufficient
answers as to the appropriate mechanisms for governing the output of social
production and resolving conflicts and disagreements related to it. This
deficiency is particularly crucial in the case of large-scale collaboration
among a massive number of users who are not organized by any formal
legal structure.
Many questions may arise regarding the ongoing processes of generating
and exploiting content through large-scale collaboration. For instance, who
has the right to edit and transform a work created by many? Should each
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participant be entitled to control her own individual contribution? How
should the output of collaborative production be managed and subsequently
governed? What rights should each participant have to their individual
contributions? What rights should each of the users have to the outcomce as
a whole? Should users be free to use their contributions to a collaborative
endeavor as they please? Is each user entitled to freely change, edit,
transfer or otherwise distribute such works? What if editing the content or
implementing a particular business model affects the endeavor as a whole,
or at least the micro-contributions made by others? Are participants free to
commercially exploit the outcome? Are they entitled to prevent others from
using it?
Copyright law does not provide a functional way for addressing these
questions in large-scale collaborations. Consider, for instance, new ways of
exploiting Wikipedia. This free, web-based encyclopedia, which is the output
of large-scale collaboration, can now facilitate printed versions through
Print-on-Demand offered by PediaPress or through the German publisher
Bertelsmann’s initiative to publish a special edition of selected items from
German Wikipedia.
87
Can any user, then, publish a printed edition of selected
entries from Wikipedia for commercial purposes?
88
Some users may view this
as an abuse of their team effort. A printed version, edited by a single publisher
and sold at a price, may contradict some of the things Wikipedia stands for: a
free, online encyclopedia that reflects the input of thousands of users-editors,
where knowledge is constantly subject to challenge; a collaborative endeavor
that promotes a non-authoritarian and a pluralistic view of knowledge; and the
widest possible dissemination of that knowledge. At the same time, however, a
printed version may promote access to knowledge and may widen the potential
readership of Wikipedia, making it useful outside the online environment.
Commercial exploitation, one may argue, would not compromise free access.
Free access to the online version will still be provided, but the printed version
will provide some added value. How do we decide between these conflicting
87 PediaPress offers a wiki-to-print feature which allows users to create a printed
version of their selection of Wikipedia entries, with a table of contents or category
lists, and bound with a color cover. See Robin Wauters, Wikipedia Offers Print-
on-Demand, T
ECHCRUNCH, Feb. 27, 2009, http://techcrunch.com/2009/02/27/print-
you-favorite-wikis-as-books-courtesy-of-wikipedia-and-pediapress/.
88 Bertelsmann, one of the largest German publishing houses, announced that it
would publish a printed edition of selected entries from Wikipedia Germany most
commonly used search terms. See Noam Cohen, A Book with 90,000 Authors, N.Y.
T
IMES, July 19, 2008, available at http://bits.blogs.nytimes.com/2008/07/19/a-
book-with-90000-authors/.
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views? Regardless of our position on this particular matter, it is evident that
copyright law does not offer a useful framework for addressing questions
regarding this new use of Wikipedia, either at the normative or at the functional
level.
The legal toolkit, which assumes collaboration under copyright law, is
rather limited. Structurally, copyright law creates a governance structure
that concentrates the power to authorize use in the hands of a single owner:
the individual author, employer, exploiting firm, or even partners who share
ownership. The law rests on the notion of a singular author, with only two
exceptions to this rule: the doctrine of work made for hire and the notion of
joint authorship.
A work-made-for-hire covers any work prepared by employees in the
scope of their employment
89
or commissioned works of certain categories
listed by law, which the parties have defined as a work for hire in a signed
written agreement.
90
Within the framework of work made for hire, the
employer is considered a single author which orchestrates the production
process implemented by many employees who are basically acting as its long
arm.
91
The collaborative nature of online production does not
fit
neatly under
this exception.
92
That is especially true in the case of massive collaboration
by thousands of contributors over time. Users who work together cannot
simply be considered employees of a social media platform, or of the NGO
or the corporate entity which operates it. They are often not officially hired
by platforms to do any particular work, and they are not paid. There are
rarely any formal employment relations between the social media platform
and the collaborating users. The actions of users generating content are often
spontaneous and independent and are not orchestrated by the social media
platform or any other single entity. In fact, even when users have engaged
in tasks which were seen as an integral part of the platform’s operation, they
have been considered by the courts to be volunteers.
93
89 17 U.S.C. § 101(1) (2006).
90 17 U.S.C. § 101.
91 Courts interpreting the notion of employee and the scope of employment under
the work-made-for-hire doctrine did not rely on employment law and developed
a separate standard of interpretation. See Michael D. Birnhack, Who Owns Bratz?
The Integration of Copyright and Employment Law, 20 F
ORDHAM INTELL. PROP.
M
EDIA & ENT. L.J. 95 (2009).
92 Steven Hetcher, User-Generated Content and the Future of Copyright: Part One,
Investiture of Ownership, 10 V
AND. J. ENT. & TECH. L. 884, 863 (2008) (arguing
that UGC cannot be considered a work-made-for-hire since the users of social
media platforms are not working for the platform).
93 The status of these volunteers for the purpose of employment benefits was raised
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Several scholars conceptualize the relationship between platform and user
as labor relations, emphasizing the economic value that users contribute to
the platforms and the way the relations are shaped by ownership and
control over the means of production.
94
Indeed, any interpretation of the
work relations between social media platforms and participating users needs
to consider the economic role of users, regardless of the existence of any formal
employment agreement. The crowd of creative volunteers lowers production
costs by allowing businesses to take advantage of amateur users without
having to compensate them or guarantee their employment environment.
95
Yet it is hard to accept the view that users/authors are employees. What
characterizes social production is that users voluntarily engage in it. When
users generate reviews of books and movies and share them online, they
do so as a matter of social practice. Therefore, users participating in social
production cannot be conceived of as workers. Social media platforms such
as Amazon can extract an economic value from user-generated reviews, but
this does not turn the practice of offering comments into work that establishes
labor relations between Amazon and the users.
Another exception to the notion of a singular author is Joint Authorship,
which results in a Joint Ownership. Under the 1976 U.S. Copyright Act,
"[a] joint work is a work prepared by two or more authors with the intention
that their contributions be merged into inseparable or interdependent parts
in class action lawsuits that were filed against AOL regarding About.com over
their volunteer labor force. Thousands of users were acting as Community Leaders
on AOL during 1997-2005 when the program expired. In 1999 a group of former
AOL Community Leaders ("CLs") filed a class action lawsuit against AOL seeking
the payment of minimum wages for the valuable work they performed for AOL.
Overtime pay was also being sought for CLs who worked over 40 hours a week.
See Hallissey v. Am. Online, Inc., No. 99-CIV-3785, 2006 U.S. Dist. LEXIS 12964
(S.D.N.Y. Mar. 20, 2006) (holding that AOL Community Leaders, who were unpaid
volunteers, could qualify for compensations under the Fair Labor Standards Act of
1938 (FLSA) 2006).
94 See Scholz, supra note 29. This somewhat Marxist approach views the relationship
between platform and users as a matter of subordination and exploitation. It
assumes that power derives from control over the means of production, and since
users inhabit a privately-owned infrastructure, they are subject to the authority of
the owners. What complicates this picture, however, is the fact that the means of
generating and distributing content also belong to the users. Servers, nodes and
networks (and also interface and data) are owned by platforms and users alike.
95 Jeff Howe, for instance, introduced the term "crowdsourcing" to describe the
outsourcing of jobs, traditionally performed by designated employees, to an
undefined, generally large group of people in the form of an open call. See
H
OWE, supra note 8.
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of a unitary whole."
96
In some cases, such as in the case of sharing, online
collaboration lacks any such intention to contribute to a unitary whole
as contributions are separate and independent. In other cases, however,
such as that of Wikipedia, it is arguable that users intend to contribute
to a unitary whole.
97
These cases might be treated under copyright law
as jointly authored, and therefore would be considered joint ownership.
98
Yet joint ownership under copyright does not offer a useful framework for
governing the output of large scale collaboration. Joint owners share equally
the ownership of copyright, unless a contrary agreement is made. The rules
related to co-ownership in copyright derive from co-ownership in tangible
property.
99
Each owner can act unilaterally and independently of the other
co-owners.
100
This does not mean that each contribution should be copyrighted
to the individual user. The collaborative nature of such creative projects may
weaken the claim of each individual user for exclusivity over the bits and
pieces she contributed to a collaborative endeavor.
It is rather superficial to apply the legal constructs of joint authorship and
work-made-for-hire to large-scale collaboration of the type that is taking
place in the social web. These legal doctrines do not provide sufficient
protection for the interests of collaborators in their joint work. Social
production
reflects
a joint effort, but here value is created by the accumulated
effort of a massive number of participants. Viewing the output of online
collaboration as a single coherent work often fails to address the special
nature of such collaboration: that it is a dynamic and interactive process.
Social production creates new space for collectivity. The contributions of
users that are facilitated online often reflect spontaneous expression and
engagement with each other’s works by rating, tagging and commenting.
96 17 U.S.C. § 101.
97 Hetcher argues that in those cases users’ contributions have an "overall value that is
immeasurably greater than the sum of its parts," and such works should be treated
under copyright law as jointly authored works, compilations, collective works, and
works made for hire. See Hetcher, supra note 92, at 886.
98 17 U.S.C. § 201(a).
99 See 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 6.10(B)
(2008).
100 Each co-owner may license any of the rights listed under the Copyright Act,
without the consent of the other joint owners, provided that she shares any profits
made from such licensing with the other co-owners. According to the House Report
accompanying the 1976 Copyright Act, this meant that joint owners of a copyright
each have "an independent right to use or license the use of a work, subject to a
duty of accounting to the other co-owners for any profits." H.R. R
EP. NO. 94-1476,
at 121 (1976).
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The output of such collaboration is actually more a reflection of an ongoing
social process than of a commodity that can be owned and transferred.
2. Impediments to Collaboration
Copyright law not only fails to provide a proper toolkit for structuring
the relationships among collaborators regarding their joint output, it may
also erect barriers to creating new content through collaboration.
101
This is
due to the fact that essentially, copyright law offers exclusivity.
102
The right
to exclude is considered a core element of any property right and a defining
feature which arguably makes intellectual property a type of property right.
103
The exclusivity that comes with ownership, which was suitable for the content
industry, does not
fit
a collaborative environment which requires coordination,
cooperation and mutual accountability.
If the contribution of each user is considered copyrighted, participating
users and social media platforms must take precautions to avoid any
unauthorized use of users’ contributions which might be considered
copyrighted. Any user who wishes to make use of a preexisting work
must first acquire an appropriate — and often costly — license. The user
must determine which license is necessary, identify the different copyright
holder, negotiate a license to use the work and pay the license fee. The high
cost involved in licensing erects barriers that often make it difficult for users
to participate in generating content, especially in collaborative initiatives of
volunteers that lack the fee structure and the organizational infrastructure
which are necessary to maintain a licensing system. Copyright law does not
leave sufficient room for users to work upon preexisting materials. Fair use
privileges, which do protect some unlicensed transformative uses, are rather
vague and indeterminate, exerting a chilling effect even in cases where a
use is legitimate.
As a legal regime that creates a hierarchy between owners (who enjoy
the power to exclude) and non-owners, copyright law conveys a normative
message that may weaken social motivation. The proprietary norm shapes
the relationships among the different players involved in collaboration.
101 See, e.g., LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY
AND THE
LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 184-99 (2004);
Litman, supra note 72, at 13-23; Diane Leenheer Zimmerman, Living Without
Copyright in a Digital World, 70 A
LB. L. REV. 1375, 1376-77 (2007).
102 Elkin-Koren, supra note 9.
103 Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV 730 (1998);
Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 W
M. & MARY
L. REV. 1849 (2007).
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Copyright law treats content as a commodity, and the use of content in
a copyright regime is framed as a business transaction. The law focuses
on the author as the center of the creation process and emphasizes her
authority to determine the fate of her work. Social production, by contrast,
is often generated as a type of communicative act,
reflecting
engagement in a
conversation or an interaction with a community, which is ultimately merged
into an information flow. Communicative acts reflect the social norms of
sharing, participating and collaborating. When a user uploads a voiceover
of a famous movie, she may be trying to communicate a message, using the
available cultural language shared by her peers. These authors/users do not
purchase the work, nor do they sell their added value. They simply interact
and communicate with others. Shaping the relationship among users as a
transaction and not as a conversation may undermine the social motivation.
We have seen that social motivation depends on a sense of belonging to a
community and on reciprocity. Exclusive rights over individual contributions
may undermine the social cohesion and the sense of community which are
both a byproduct of social production and the mechanism that keeps it alive.
To summarize, the individualistic focus on the sovereignty of the owner
regarding the use of the work and the legal power to exclude others,
which is the essence of the proprietary approach to copyright, may
conflict with the fundamentals of social production. The proprietary
emphasis on the sovereignty of owners further weakens social cohesion
by emphasizing difference and disparities of interests rather than shared
values and goals. This emphasis on the right of each owner in her respective
contribution creates impediments to large-scale collaboration, as it gives
each and every contributor the power to decide how their contribution will
be exploited.
B. Encouraging Social Production in the Shadow of Copyright
The deficiencies of copyright in governing relationships related to social
production induced the adoption of private ordering arrangements by
communities of users/authors. Licenses, contracts and Term of Use (ToU)
enable online communities to opt out of the standardized rights and duties
applied by copyright and to establish a legal regime that fits their needs. A
classic example is the General Public License (GPL) of the Free Software
Foundation (FSF), which secures the freedom to run, edit and share software.
Collaborative production currently relies on two licensing strategies: one
is modular and the other is standard. The modular strategy, used by Creative
Commons, gives the author the power to decide how to use her content, by
selecting a license that comes with the content. As I have argued elsewhere,
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this modular licensing scheme leads to a plurality of licenses, compromising
clarity and predictability.
104
It often creates new barriers to the coordinated
use of copyrighted works where licenses are sometimes incompatible with one
another. A licensing strategy that leaves the power to decide on permissible
uses to each individual licensor may fail to facilitate
efficient
coordination of
large-scale collaborations, which require shared norms regarding the use and
exploitation of content produced by the community.
Another licensing strategy, which promotes a single licensing standard,
requires participants to enter a "social contract" — a list of permissible
uses in a standardized ToU or the End-User License Agreement (EULA)
— that applies to all the collaborating users and reflects their shared
norms regarding the use of their contributions. This strategy enables the
community of users/authors to agree upon a set of shared norms related to
the exploitation of their contributions, individually and as a whole. Terms of
use governing social production could be attached to any new contribution
to the collaborative project (i.e., GPL) or posted and administered by the
social media platform (i.e., Facebook, Wikimedia).
From the perspective of social production, such private ordering
arrangements have an important advantage, as they allow communities to
tailor the governance of content to fit the nature of collaboration, the group
identity and the values shared by its members. At the same time, however,
private ordering provides only a limited remedy to some of the deficiencies
of copyright discussed above, as it suffers from several disadvantages. A
major shortcoming of private ordering is that obtaining the consent of
thousands of collaborators to a contract, and to any revision thereof, might
be a very difficult (and costly) task. This process of collective action is a lot
more difficult to achieve than simply coordinating the work of collaborators
in creating new content. Collective action requires a procedure that would
enable the group to reach decisions which are binding on the entire group of
collaborators regarding the exploitation of the work. It is difficult to reach
such agreement in large-scale collaboration where the parties are not bound
together by any formal legal structure.
105
104 Niva Elkin-Koren, Exploring Creative Commons: A Skeptical View of a Worthy
Pursuit, in T
HE FUTURE OF THE PUBLIC DOMAIN 325 (P. Bernt Hugenholtz & Lucie
Guibault eds., 2006).
105 Viral licensing was, in fact, an innovative legal mechanism for facilitating
entrance into this type of collective action, applying the license to any
derivative work which is based on the original. See Creative Commons,
Licenses, http://creativecommons.org/about/licenses/ (last visited Oct. 1, 2010)
(Creative Commons Share Alike license); Free Software Foundation, GNU General
Public License v2 s. 2(b), http://www.gnu.org/licenses/gpl.html (last visited Oct.
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Moreover, once a consensus is reached, it is very difficult to move away
from it. Since private ordering of social production relies on the copyright
of each contributor, relicensing requires obtaining permission from all the
contributors to the endeavor. For large-scale collaborations, any process of
identifying the right-holders and getting their permission to relicense their
content under different terms would be prohibitively costly and most likely
unfeasible. This becomes a critical issue as there is a constant need to
revise the terms of such licenses. That is because the online environment
is dynamic and changes rapidly with new technological developments, new
business models, and changes in circumstances and power relations.
Processes of license migration in social production are not only
cumbersome and time-consuming but also
difficult
to achieve. Legally, every
owner has to agree to license her content under new license terms. But every
new license must also gain the legitimacy of the entire community of right
holders. Practically, if contributors do not opt-in the new license becomes
useless. In this respect, social production is fundamentally different from
corporate production of content. Social production depends on the enduring
contribution of users. If they cease to collaborate, the endeavor will dry out
and the content will vanish.
One example of these difficulties is the migration to the GPLv3
administered by the Free Software Foundation. The draft of version 3
of the GNU General Public License (GPL) was released in January 2006,
and the final version was finally released in June 2009, after a public
consultation and a long and intensive consensus-building process within the
Free Software and Open Source communities.
106
Another example is Wikipedia license migration. The Wikimedia
Foundation, the
nonprofit
organization that supports Wikipedia, was recently
faced with the need to modify its license. Wikipedia entries used to be
subject to the GFDL license, a GNU Free Documentation License that
permits copying and distribution in any medium for either commercial
or noncommercial purposes. The license imposed significant burdens on
print distribution (like attaching the printed version of the license) and was
incompatible with other free content licenses such as Creative Commons
license.
1, 2010); Free Software Foundation, GNU General Public License v3 s. 5,
http://www.gnu.org/licenses/gpl.html (last visited Oct. 1, 2010).
106 The public consultation process was coordinated by the Free Software Foundation.
See Free Software Foundation, Welcome to GPLv3, http://gplv3.fsf.org/ (last visited
Oct. 1, 2010).
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The migration to Creative Commons CC-BY-SA
107
was legally
complicated and somewhat controversial within the community. Legally, each
Wikipedia contributor retains copyright in the content that they submit, and
Wikimedia was therefore unable to unilaterally relicense the content under a
different license. What enabled the migration to CC-BY-SA was the release of
a revised version of the GFDL, which was jointly announced by the FSF and
the Wikimedia Foundation and which explicitly authorized the relicensing
of content posted on Massive Multi-author Collaboration (MMC) Sites for a
limited time.
108
Even though the amended version of the GFDL authorized
Wikimedia to relicense under CC-BY-SA, it nevertheless brought this issue
to a general vote and subsequently created dual-license for Wikipedia content
so that it is available under both the GFDL and CC-BY-SA licenses.
109
ToU governing social production are also facilitated by the social media
platform (i.e., Facebook, Wikimedia). Such ToU typically define ownership
and license the use of content generated and shared through the platform.
As I have argued elsewhere, the interest of platforms and the needs of
participants in social production may coincide.
110
The platform’s economic
value derives from the network of users who create value. The viability of
the platforms depends upon users’ ongoing contributions. In fact, there is
no value in the platform other than the users who actively engage in it. In
order to thrive, social media platforms must sustain an engaged community,
encourage social motivation, and preserve loyalty and social commitment.
Nevertheless, as mega platforms such as Facebook become more powerful,
107 Creative Commons CC-BY-SA authorizes the copying, distribution, display and
performance of the work and the making of any derivative work provided that
appropriate credit is granted (Attribution) and that any subsequent derivative work
will be subject to the identical license that governs the original work (ShareAlike).
See Creative Commons, supra note 105.
108 Wikipedia entries were subject to the GFDL Version 1.2 "or any later version
published by the Free Software Foundation." Version 1.3 of the GFDL, which
was jointly announced by the FSF and the Wikimedia Foundation, included a
new section that authorized Massive Multi-author Collaboration Sites, such as
Wikipedia, to relicense their content under CC-BY-SA license before August 1,
2009. See Matt Lee, FSF Releases New Version of GNU Free Documentation
License (Nov. 3, 2008), http://www.fsf.org/news/fdl-1.3-pr.html.
109 The migration to the new licensing scheme became effective after a
general vote by all content contributors who had made at least 25 edits
to Wikipedia before March 15, 2009. See Mike Linksvayer, Wikipedia
Community Vote on Migration to CC-BY-SA Begins Now (Apr. 13, 2009),
http://creativecommons.org/weblog/entry/13967.
110 Elkin-Koren, supra note 9.
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there is a growing concern that they will rely on the copyright of collaborating
users to gain dominance.
The downsides of private ordering suggest that collaborative production
cannot be efficiently accommodated without some adjustments in copyright
law. Copyright law should offer particular rules that would facilitate social
production. Arguably, different communities have different needs and values;
it would be difficult to come up with a single legal standard that fits all.
If we want to encourage social motivation, we need to help individuals
form communities and select the terms that fit their own preferences. To
allow for a statutory yet flexible solution, copyright law might provide a set
of default rules related to the collaborative production of content, helping
groups coordinate not just the collaborative work but also the norms related
to access and use of the output. These default rules should define fair
procedures for opting in and out of a collaborative project and for amending
the terms and conditions which apply to the content. Such default rules may
facilitate social production by enabling individuals to form communities and
negotiate norms on their own, without the assistance of intermediaries such
as FSF or mega platforms.
C. Social Production and the Economic Justification of Copyright
The economic analysis of copyright law assumes that content producers
are selfish, rational actors who maximize profits. Corporations are profit-
maximizers and therefore require economic incentives to invest in the
production of new content. Content is expensive to produce and inexpensive
to copy. The marginal cost of copying is often zero. Therefore, economic
theory would predict that informational works will be under-produced in
the absence of copyright. Only copyright, it is assumed, can secure a return
on the investment in the creation of content and therefore secure sufficient
incentives to create. The high investment in production costs (of a novel, a
news report, a television series or a movie) is recouped by selling copies at a
monopoly price or licensing exclusive broadcast rights. The business models
of mass media and the content industry are therefore based on exclusivity.
This incentives paradigm was central for an economic reality where content
was produced primarily by firms and for-profit organizations.
Social motivation, as explained above, is challenging this view of the
creative environment and therefore the prevailing economic rationale of
copyright law. In sharp contrast to the industrial model, individuals producing
content in social contexts are driven by a wide range of social motivations.
Social production is therefore less dependent on a firm business model that
secures a financial return for each creative investment; it depends instead on
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voluntary contributions by individuals, often large crowds of individuals,
and on their continued engagement and enthusiasm. Consequently, legal
scholars in recent years have been paying more attention to the non-
monetary incentives that motivate creators to challenge the dominant view
that monetary rewards are necessary and sufficient for inducing human
creativity.
111
The prevalence of social motivation introduces a new dimension to
copyright policymaking. The rise of social production and the greater share
of UGC in the overall content that is available to the public imply a
shift in the balance mandated by the public good equation. The "public
good" nature of creative works entails that copyright law must balance two
contrary forces: the need to provide exclusive rights for incentivizing the
creation of new works, and the need to minimize restrictions on access as a
result of excessive copyright protection. Such limits on access to preexisting
materials will hinder further creation and deny society the benefits of the
copyright system. While monetary incentives were absolutely necessary
to induce mass production by the content industries, the rise of social
production suggests that other considerations should now be given more
weight, namely, maximizing the use of (non-rivalrous) informational works.
III. CAN COPYRIGHT BE TAILORED TO SOCIAL PRODUCTION?
How can copyright law tilt the balance to facilitate social production?
Proposing a detailed legal reform is beyond the scope of this Article.
The following discussion therefore identifies some of the challenges to
copyright law. Legal policies that seek to encourage social production should
focus on three challenges: strengthening social motivation by securing a
right to attribution; removing impediments to collaboration by explicitly
permitting noncommercial use; and, most importantly, enabling individuals
in large-scale collaboration to act together.
One issue is credit and attribution. Users often seek some recognition
for their contributions. The evolvement of attribution as a requirement in
the licenses offered by the Open Content Movement shows that attribution
111 See Diane L. Zimmerman, Copyrights as Incentives: Did We Just Imagine That?,
12 T
HEORETICAL INQUIRIES L. 29 (2011) (drawing on the insights of social science
studies which explore the human motivation to engage in creative activity);
Tushnet, supra note 43, at 517-18; Julie E. Cohen, Creativity and Culture in
Copyright Theory, 40 U.C. D
AVIS L. REV. 1151 (2007).
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[Vol. 12:309
is an important component of social motivation.
112
In fact, attribution often
substitutes for monetary compensation. Gaining credit, status and reputation
could become financially beneficial as online reputation becomes the new
currency of the Web. Credit and attribution may also be associated with the
collaborative endeavor and reflect the desire of users to be associated with
a group identity or a social movement. Legal policies that aim at promoting
social motivation should therefore secure a right of authors/users to receive
reasonable credit in contribution to social production. The challenge for
copyright law is to develop some legal standards for evaluating attribution
practices and the extent to which they provide fair credit to authors. At the
same time, however, a right to attribution should not compromise free and
open information
flows
and should therefore not be treated as a property right.
Another issue is noncommercial use. Social production is emerging
alongside the industrial model. There are many clash points at the
interface between commercial and noncommercial use. Participants in social
production may sometimes seek to monetize their content.
113
Users might
also be using commercial content for noncommercial purposes. For instance,
content produced by users sometimes is entwined with mass-produced content
(i.e., a mashup of a homemade video clip and a popular song). Such incidents
often incite lawsuits by right-holders against users.
114
The legal right of
owners to exclude the use of their materials by unlicensed users creates
barriers to participation by individual users in social production. Since social
production often lacks any business model, a license cannot be acquired. On
the other hand, UGC is sometimes incorporated into new business models of
commercial players (i.e., book reviews scraped for commercial use). In such
instances, users might be required to protect their own works from commercial
exploitation by others.
The mixture of commercial interests and social motivation may threaten
the sustainability of social production.
115
The blurred boundaries between
commercial and noncommercial activities may jeopardize the attempt
112 Creative Commons made attribution a legal requirement which is included in all
of their licenses. See Creative Commons, supra note 105; see also Catherine L.
Fisk, Credit Where It’s Due: The Law and Norms of Attribution, 95 G
EO. L.J. 49,
91 (2006) ("The experience of organizations devoted to a robust public domain
suggests that even those devoted to minimizing intellectual property rights still
insist on attribution.").
113 See supra notes 59-64 and accompanying text.
114 See, e.g., Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1155-56 (N.D.
Cal. 2008).
115 See supra notes 65-68 and accompanying text.
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Tailoring Copyright to Social Production
to maintain the noncommercial volunteering spirit of social production.
This interface between commercial and noncommercial practices of social
production therefore requires a legal switchboard which would allow
producers of both commercial and noncommercial content to easily switch
between the two contexts of creation and exploitation of creative materials.
For this purpose, it is necessary to provide an explicit legal exemption for
noncommercial personal use. Such an exemption may enable participants
to shift more easily between an individualist-competitive approach and a
communal-collaborative approach.
So far, the Supreme Court of the United States has failed to interpret the fair
use doctrine as a general right of personal noncommercial use.
116
Securing
this right may therefore require amending the law by adding an explicit fair
use exemption for private noncommercial use. Such an exemption should set
clear, bright-line standards that would establish certainty and predictability
regarding permissible uses.
A recent attempt to define the boundaries of noncommercial use is
Litman’s proposal to exempt personal use. Litman argues that the bundle of
rights of copyright owners should be limited to the right to exploit the work
for extracting revenues and should not extend to personal use, namely the
right of individuals to read, listen to or view the work. This line, she argues,
lies at the distinction between the exploitation and enjoyment of copyrighted
works. Personal use, namely a "use that an individual makes for herself, her
family or her close friends," will generally be considered enjoyment and not
exploitation, although there might be some difficult cases at the margins.
117
Online collaboration requires that users be able not only to view, read,
and listen to content created by others, but also to use content actively by
changing its form or context and sometimes incorporating it into their own
work. Consequently, promoting social production would require that the
116 Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984); see Jessica
Litman, The Sony Paradox, 55 C
ASE W. RES. L. REV. 917, 957, 960-61 (2005).
A privilege codified in the Audio Home Recording Act of 1992, 17 U.S.C. §§
1001-10 (1994), authorizes consumers to record music for personal noncommercial
use. See id. § 1008.
117 Litman assumes that "[t]here’s broad consensus that even unauthorized enjoyment
is not and should not be illegal unless it either crosses the line into exploitation
or otherwise interferes with the copyright owners’ opportunities to exploit their
works. The difficulty is in telling the difference." Jessica Litman, Lawful Personal
Use, 85 T
EX. L. REV. 1871, 1908 (2007). Litman argues that we need to define
commercial use narrowly enough and also avoid assuming the unlawfulness of
personal use simply because it competes with a copyright owner’s plan to exploit
the work. Id.
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[Vol. 12:309
noncommercial personal use exemption also cover transformative use and
the right to adapt a copyrighted work for personal noncommercial purposes.
The challenge for copyright law is to develop some legal standards that would
easily allow for a distinction between commercial and noncommercial use.
In an environment where social production is increasingly intertwined with
commercial interests, defining such clear standards may pose a complicated
challenge.
118
The greatest challenge to copyright law in the age of social production,
however, is how to balance the autonomy and sovereignty of the individual
author/user on the one hand and the vested interest of each of the
collaborating contributors in the joint work on the other hand. Online
large-scale collaboration for creating informational works often generates
an output that is greater than the sum of each individual contribution. Each
contributor may have a vested interest not only in each of their individual
contributions, but also in the output of their collaborative efforts as a whole.
Users might be at liberty to remove their work from a particular collaborative
project and transfer it to a different facility at their discretion. At the same
time, however, collaborating users may rely heavily on the contributions of
other users. Content provided by one user can easily be incorporated into
the works of others or merged into a single output. I may own a photo which
I post on Facebook. This photo, however, may become part of someone
else’s profile or someone else’s original video clip. Denying access to such
contributions may seriously compromise the interests of other collaborators.
Yet the proprietary approach of copyright enables each contributor to claim
rights over a concrete micro-contribution to the collaborative effort, and
sometimes to veto the exercise of rights by others.
Legal policies for nurturing social motivation must respect the autonomy
of users and their freedom to be social, but must also respect their freedom
to opt out of the social creative scene. How can legal policy provide some
protection for the interests of the group as a whole without abolishing
individual freedom? Note that this is not a conflict between the private and
the public. The social good requires protection, as it serves the needs of
individual participants as social beings. Therefore the ownership interest of
each contributor in her particular contribution should be subordinated to the
interest of the community in the output as a whole. The copyright of each
118 For the complexity involved in distinguishing between commercial and
noncommercial use, see the study by Creative Commons: Creative Commons,
Defining "Noncommercial": A Study of How the Online Population
Understands "Noncommercial Use" (Sept. 14, 2009), http://wiki.creativecommons.
org/Defining_Noncommercial.
347
2011]
Tailoring Copyright to Social Production
participant in large scale collaboration should therefore be weakened. Put
differently, rather than a right to exclude, contributors may have a right to
prevent exclusion by any particular author of the collaborative work and to
freely use the contributions of others, on which they relied.
CONCLUSION
Our current laws address individuals who collaborate through market
mechanisms and citizens who collaborate through the political system.
But social production is neither a market nor a type of collective action. It
therefore entails a different theoretical approach. The governance of social
production in the online environment requires a sui generis approach that is
designed to address the relationship among users, and between individual
users and their community of collaborators.
What should a "social contract" among users who collaborate in generating
online content look like? A legal arrangement which aims to address peer
collaboration in generating original content must secure the unique interests
of both individuals and groups. When the organizing unit of production is
social interaction, then social interaction should also be the organizing unit
for exploiting the works. Each of the users, however, might have an interest
in the output of collaboration that is also worth protecting. Furthermore,
social production entails that control over the output of a collaborative
effort is not simply about the ability to economically exploit the work, but
is also linked to non-monetary interests such as affiliation, identity, and
a sense of belonging to a community. Therefore, the types of governance
challenges which we face in the context of social production are located at
the intersection of private and public law.
