Governing Access to Users-Generated-Content: The Changing Nature of Private Ordering in Digital Networks

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.