At the workshop „Mashing-up Culture: The Rise of User-generated Content“, which had been perfectly organized by Eva Hemmungs-Wirtén of Uppsala University in Sweden, Sigrid and I not only presented a paper on “The Copyright Dispute” (see resources page for paper and slides respectively), but I also had the great pleasure of meeting Niva Elkin-Koren. She is not only project lead of Creative Commons Israel but does very instructive research on copyright licensing and governance in the realm of digital communities (see SSRN-page for details).

One of her most recent papers, titled “Governing Access to User-Generated-Content: The Changing Nature of Private Ordering in Digital Networks”, is of particular relevance for scholars of transnational governance: Most of the new digital communities and their respective carrier platforms such as Facebook, YouTube or Wikipedia are “born globals”. Their regulation, be it (seemingly) unilateral via terms of service (see “Private Copyright Regimes: Facebook”) or multilateral via optional licensing (see, for example, Flickr), represents a form of transnational private ordering. At the same time, the pace of technological change and the blurring boundaries between the commercial and the non-commercial sphere make this field particularly promising for studying (collisions of) transnational governance regimes.

In the second half of the paper, Niva Elkin-Koren describes the dual nature of platforms – as commodities of their owners and communities of their users – as well as the dual role of users – as producers and consumers of content. It is such dualities that “reflect the complexity of new social media” (p. 14). And I totally agree that it is the intermixture and the dynamics of private ordering by both platforms and users that might lead to suboptimal results for individual (or groups of) users or for the wider public or for both. (I am especially sympathetic to her critique of too much choice in open content licensing, see also her paper “Creative Commons: A Skeptical View of a Worthy Pursuit”.)

But while I also subscribe to her principal scepticism towards private ordering as the dominant mechanism for governing access to creative works, in my point of view, the question of its feasibility can and should not be answered once and for all. It is rather an empirical question. Of course, if private ordering was reduced to “a market for different access terms” this would probably justify dismissing it once and for all. However, in the case of the GPL as the de-facto standard for free/open source software development, the copyleft-clause creates the basis for a hybrid ecology of commercial and non-commercial use that would be very difficult to achieve solely via public ordering. One of the reasons for this success is the political message embedded in the private license regime – a message forcefully emphasized by Richard Stallman and his Free Software Foundation. Similarly, I would claim that projects like Wikipedia flourish not in spite but because of their hybrid, their private-public nature.

So, whether private is superior to public ordering not least depends on how the respective platforms and carrier organizations manage this hybrid or again dual nature of private regulation. It is in this regard that organizational structures, decisions and decision-making processes are key.