In theory, copyright first and foremost belongs to the creator of any new work. In practice, creators are often forced to give up their copyright completely. Most researchers, for example, who need to publish in high impact journals have hardly any choice but handing over it their copyright to journal publishers. Or, Musicians cannot exclude some of their works from the terms of their copyright collectives to publish them under alternative licenses. By joining a collecting society like the German GEMA you trade certain parts of your copyright for the right to receive royalty payments. GEMA’s terms of service, however, are non-negotiable for individual musicians: like it or leave it. (see “Competition for Copyright Collectives“).
In many sectoral contexts private copyright regimes more or less completely replace the logic of (inter-)national copyright legislation. Mostly this is due to private standardization and respective network effects: if the individual benefits of adopting a standard depend on the total number of adopters, “exit” is not an option. People dissatisfied with such a private copyright regime are only left with the possibility of “voice”, thereby revealing the inherently political nature of private copyright regulation.
A recent example for political struggles around private copyright regimes is a change in the terms of service in the world’s largest social networking platform Facebook. The Consumerist summarizes the change as follows:
Now, anything you upload to Facebook can be used by Facebook in any way they deem fit, forever, no matter what you do later. Want to close your account? Good for you, but Facebook still has the right to do whatever it wants with your old content. They can even sublicense it if they want.
On Facebook, there is already opposition to these changes, manifest in a Facebook-group called “People Against the new Terms of Service (TOS)”. However, the bargaining power of users is limited and likely to further decline as the importance of social networks and other web 2.0 services for everyday live grows: Even today leaving the dominant social network would mean complete social exclusion in many juvenile peer groups. For many Facebook users, exit is indeed not an option. Hence, I expect to see much more political discussion on and within private regulation regimes not only in the field of copyright, which actually seems to be a minor issue compared to others like privacy and free speech.
Within just one (!) day, the member count in the Facebook group “People Against the new Terms of Service (TOS)” rose from below 500 to over 17.000 (as of 1 pm CET, Feb. 17, 2009). Facebook founder and CEO Mark Zuckerberg already felt the need give a statement on his blog.
Facebook surrendered. The old TOS are back in place, as announced by Zuckerberg. Not only have more than 65.000 people joined the protest group on Facebook but also has there been enormous media coverage, documented on Consumerist. In the meantime, Facebook has launched its own group to collaboratively discuss new TOS called “Facebook Bill of Rights and Responsibilities.”