WIPO – IP and Creative SMEs in the Digital Environment Copyright and the Participative Web Prof. Dr. Martin Senftleben VU University Amsterdam Geneva, May 20, 2008

The Participative Web

The participative web active users –increased user participation and interaction –rise of the amateur creators generating content –publication –creative effort –outside of professional routines

UCC platforms blogs social networking sites content aggregators with ratings wikis (text-based cooperation formats) podcasting virtual world content

Traditional publishing chain artists, creators end users, including creators distribution chain selecting content content publishers selecting content

UCC publishing chain artists, creators end users, including creators UCC platforms ratings, recommendations

Economic implications disruptive effect on traditional suppliers –professionals facing competition from amateurs –reduced consumption of traditional media –illegitimate access to traditional content opportunities for new market participants –search engines and advertising –UCC-based services (sharing of experiences) –use of participative web tools in business –licensing models for UCC –sale of platforms

Social and cultural implications increased user autonomy –democratization of media production –increased citizenship engagement increased participation –shift to a participatory culture –establishment of social ties and structures increased diversity –long tail effect (content for niche audiences) –preservation of languages, cultural expressions –benefits for education and information –risk of cultural fragmentation

The Role of Copyright

Copyright – counterproductive in the participative web? an obstacle to the free flow of information? a burdensome, complex area of law that causes legal uncertainty and prevents users from creative activities? a legal instrument used by traditional information producers to impede the development of new business models?

Exploitation rights – a basis for contractual solutions incentive/reward rationale still valid? creative commons Moral rights – a basis for honest behavior right of attribution ‘…to claim authorship of the work…’ right of integrity ‘…and to object to any distortion, mutilation…’

Copyright limitations – central to the participative web copyright holders users who transform platform providers users who add value

Social and cultural implications – transformative use factors to be considered –freedom of expression –intergenerational equity among creators –promising creative potential traditional solutions –limitations for quotation, parody, criticism, review –press privileges for news reporting quality function of copyright

Economic implications – value-added products factors to be considered –engine of competition and innovation –dissemination of information –distribution of markets, risk of substitution traditional solutions –limitations for press summaries –library privileges competition function of copyright

Limitations in the Digital Environment: Agreed Statement Concerning Art. 10 WCT “It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.”

Status Quo protection of technological measures –enables new markets, facilitates licensing –limitations do not necessarily prevail proliferation of the three-step test –used as an additional control mechanism –legal uncertainty on balance: a trend towards less efficient copyright limitations

Copyright limitations – central to the participative web copyright holders platform providers

Platform providers – liability? factors to be considered –indirect beneficiaries of limitations –connection with value-added products –heavy burden of general monitoring traditional solutions –notice and take down procedures –appropriate when the platform plays a rather active role?

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