Niva Elkin-Koren

Bio

Niva Elkin-Koren is the Dean of the University of Haifa Faculty of Law. She is the founding Director of the Haifa Center for Law & Technology (HCLT). She received her LL.B from Tel-Aviv University School of Law in 1989, her LL.M from Harvard Law School in 1991, and her S.J.D from Stanford Law School in 1995. Her research focuses on the legal institutions that facilitate private and public control over the production and dissemination of information. She has written and spoken extensively about the privatization of information policy, copyright law and democratic theory, the effects of cyberspace on the economic analysis of law, liability of information intermediaries, the regulation of search engines, and the legal strategies for enhancing the public domain.

Abstract

Governing Content in the Social Web

The prevalence of social production and the rise of User Generated Content (UGC) destabilize the fundamental premises of the legal institutions which govern access to content – copyright and contracts. Social production is driven, to a large extent, by social motivation; it is often collaborative in nature, and it is created and shared within a social context designed by social media platforms. This social dimension is currently missing from our regulatory approach to content. While the current intellectual property regime focuses on central control, social production requires us to articulate a matrix of relationships which has three pillars: the individual, the facilitator (either commercial or non-commercial, private or governmental) and the community of users. A better understanding of this complex dynamics—between individuals, crowds and social media platforms— is necessary in order to design adequate policies for the social web.

The paper underlines the limitations of the current regime and points to the need for rethinking our conceptual framework. I describe the social nature of UGC and analyze the implications of social production for the different stakeholders. The social web creates a mixture of commercial and non-commercial interactions, transitory and enduring stakes, ad-hoc collaboration and sustainable communities. I explain why social production and UGC might be incompatible with the current copyright regime. I also discuss market analysis and argue that the view of users-platform interaction as a market transaction for goods and services governed by contracts, is rather limited. Finally, I offer several insights on the institutions that should govern access to User Generate Content in the social web.