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The Council of Europe has invited me to contribute the following input paper (PDF) on “Need for New Regulation to Enhance Creativity in the Digital Age: The Cases of User-generated Content and Cultural Heritage Institutions” for the Conference on “Creating an enabling environment for digital culture and for empowering citizens”, taking place 4-5 July 2014, Baku, Azerbaijan. 

In the course of growing economic importance of knowledge and of technological change related with the Internet and digitization, regulations of knowledge and information goods have increasingly become an issue of transnational contestation. Particularly the role of copyright law has changed since virtually all forms of online communication and interaction requires copying and distributing content, thereby becoming copyright-related. In a way, copyright laws have become the core regulatory device for the digital information society in general and digital creative practices in particular.

At the same time, we can observe that regulatory struggles in the copyright realm date way back. Already Kant (1785) and Fichte (1793) distinguished between different functional groups affected by copyright laws, among which publisher/copyright owner, author/creator, and consumer/user represent the most important. These groups are still the ones most affected by copyright regulation, even though today copyright also covers cinematographic work and computer programs and it is possible to reproduce nearly all types of work in digital form. Balancing the interests of these groups is therefore still the main task for copyright regulators on the international and the national level.

And while technological change has always provided both opportunities for new forms of creativity and problems for pre-existing business models in the copyright realm (Wu 2010), the all-encompassing and highly dynamic impact of new digital technology on nearly all fields and types of creative activities brings with it enormous regulatory challenges. First, digitization makes it possible to distinguish between content and medium – a constellation that is of major importance for the copyrighted content industry since it sells CDs, DVDs, and books, not music, movies, or novels. From a regulation perspective, this means that new rules – be they publicly legislated or privately enforced via license agreements – tend to more directly address particular usage practices, affecting traditional knowledge brokers such as archives, libraries or museums. Second, loss- and lag-free copying of digital contents via personal computers and the Internet enable new forms of private copying and peer-to-peer distribution of content on a massive scale. The regulation challenge related to this issue is to allow for these new technologies to enfold while at the same time prevent a massive increase in copyright infringement due to piracy. Third, thanks to decreasing production and distribution costs, many more people actively engage in content creation and make their works accessible directly to the public (sometimes referred to as ‘user-generated content’), thereby often re-using and transforming pre-existing copyrighted works. How to regulate these new forms of derivative creativity and creative consumption is again a task for regulators to address. Read the rest of this entry »