Niva Elkin-Koren (University of Haifa – Faculty of Law) has posted Governing Access to Users-Generated-Content: The Changing Nature of Private Ordering in Digital Networks (GOVERNANCE, REGULATIONS AND POWERS ON THE INTERNET, E. Brousseau, M. Marzouki & C. Meadel eds., Cambridge University Press, 2009) on SSRN. Here is the abstract:
This
paper analyzes the rise of private ordering as a dominant strategy for
governing creative works in the digital environment. It explores the
changing nature of private ordering in the Web 2.0 environment, where
it is used for governing User-Generated Content (UGC). Private ordering
is playing an ever greater role in governing the terms of access to
creative works. Rightholders often use End-User License Agreements
(EULA) to expand the scope of protection provided under copyright law,
by limiting the rights of users under legal doctrines such as ‘fair
use’ and ‘first sale’. At the same time, private ordering has also been
employed in recent years by Open Access initiatives, to promote access
to creative works and facilitate interaction, exchange and sharing of
creative materials.Governing access to (UGC) by private
ordering raises a whole set of issues related to licensing through
platforms, the interdependency of users and platforms, and the
licensing by many to many. The changing creative landscape of the Web
2.0 expands the ethos of creativity, supplanting the proprietary
exclusivity-based discourse with a new set of values: sharing,
participation, and collaboration. Still, some private ordering
strategies may reinforce proprietary notions, even unintentionally.Part
I describes the rise of private ordering in the digital environment.
Part II scrutinizes the arguments of proponents and opponents of
private ordering for governing access to creative works. Part III
describes the use of private ordering to govern access to UGC,
analyzing the different nature of private ordering in this environment
and the special consideration it raises. Part IV examines whether the
ascendancy of UGC gives rise to different considerations related to
private ordering.