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Online Re-Creation Culture in the 21St Century

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Online Re-Creation Culture in the 21St Century Online Re-creation Culture in the 21st Century: the Reconciliation between Copyright Holders, Online Re-creators and the Public Interest By Khanuengnit Khaosaeng Thesis submitted for the degree of Doctor of Philosophy Queen Mary, University of London 2016 1 I, Khanuengnit Khaosaeng, confirm that the research included within this thesis is my own work or that where it has been carried out in collaboration with, or supported by others, that this is duly acknowledged below and my contribution indicated. Previously published material is also acknowledged below. I attest that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge break any UK law, infringe any third party‘s copyright or other Intellectual Property Right, or contain any confidential material. I accept that the College has the right to use plagiarism detection software to check the electronic version of the thesis. I confirm that this thesis has not been previously submitted for the award of a degree by this or any other university. The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. Khanuengnit Khaosaeng 26 August 2016 Previous publication: Khanuengnit Khaosaeng, ‗Wands, Sandals and the Wind: Creativity as a Copyright Exception‘ (2014) 36(4) European Intellectual Property Review 238. 2 Abstract In the online culture of the 21st century, people worldwide re-create and disseminate works by using existing works. Facilitated by the Internet and digital technologies, ―online re-creations‖ have become much more common, more widespread, and more sophisticated than ever before. Online re-creations are new works created based on pre-existing copyright protected materials: they are for instance fan fiction, parody, mash-up, fanvid, machinima and virtual world. Due to the difficulties to obtain authorisation from right owners of the original works, online re-creations are potentially infringing the rights of copyright holders. Infringements are usually assumed to occur despite the uncertain legal status and the various nature of online re-creation. Nevertheless copyright and online re-creations are both essential. Re-creations and their online culture are beneficial to individuals and the society at large due to the three principles i.e. creativity, freedom of speech and the public interest. This thesis finds that copyright law that should encourage creative expressions has restrained and discouraged creative re- creations. Besides, the existing copyright exceptions are insufficient and ineffective to safeguard the rights of the re-creators and the interest of the public in accessing and reworking from copyright protected works. It is therefore vital to reconcile the conflicting interests: the exclusive rights of the copyright owners, the rights of re-creators and the interest of the public. To achieve a fair and reasonable balance between the conflicting rights and interests, this thesis proposes that everyone should have a right to use existing works in making creative re-use of such works without infringing copyright. The ―right to re-create‖ will be granted to the person whose re-creation meets all specified criteria. 3 Table of Contents Abstract ............................................................................................................................................. 3 Table of Contents .............................................................................................................................. 4 Table of Figures ................................................................................................................................ 7 Table of Abbreviations ..................................................................................................................... 8 Acknowledgements ......................................................................................................................... 10 Introduction ..................................................................................................................................... 11 CHAPTER 1 - Emergence of Online Re-creation Culture ............................................... 15 1.1 The Change of Technology, Society and Culture ................................................................. 15 1.2 Online Re-creations .............................................................................................................. 18 1.2.1 Definition and Nature of Re-creation ............................................................................. 19 1.2.2 Categories of Online Re-creations ................................................................................. 21 1.3 Conclusion ............................................................................................................................ 33 CHAPTER 2 - Copyright Problems of Online Re-creations ............................................ 35 2.1 Copyright Limits Activities for Re-creation ......................................................................... 36 2.1.1 Copying and alteration ................................................................................................... 36 2.1.2 Online communication and making available to the public ........................................... 47 2.2 Authorisation Difficulties ..................................................................................................... 49 2.3 Moral Rights Concerns ......................................................................................................... 50 2.4 Inadequacy of Copyright Defences ....................................................................................... 55 2.5 The ‗Giant Grey Zone‘ .......................................................................................................... 57 2.6 Conclusion ............................................................................................................................ 61 CHAPTER 3 - Justifications of Online Re-creations: the Rights of the Re-creators and the Interests of the Public ................................................................................................. 63 3.1 Creativity............................................................................................................................... 63 3.1.1 Human and Creativity .................................................................................................... 63 3.1.2 Copyright, Creativity and Online Re-creations .............................................................. 73 3.2 Freedom of Speech ............................................................................................................... 84 3.2.1 The Status Quo and its Origins ...................................................................................... 84 3.2.2 Copyright and Freedom of Speech ................................................................................. 91 3.2.3 Copyright, Freedom of Speech and Online Re-creations ............................................. 105 3.2.4 Conclusion ................................................................................................................... 108 4 3.3 The Public Interest .............................................................................................................. 109 3.3.1 The Discourse of the Public Interest ............................................................................ 109 3.3.2 Copyright and the Public Interest ................................................................................. 114 3.3.3 Copyright, the Public Interest and Online Re-creations ............................................... 125 3.4 Conclusion .......................................................................................................................... 134 CHAPTER 4 - Insufficient Copyright Exceptions and Limitations ............................. 136 4.1 Fair Use Doctrine of the US ................................................................................................ 137 4.1.1 Fair use problem of uncertainty ................................................................................... 138 4.1.2 Obscure nature of ‗transformativeness‘ ....................................................................... 140 4.1.3 Online re-creations and fair uses .................................................................................. 144 4.2 Exceptions and Limitations under the EU law .................................................................... 147 4.2.1 UK fair dealing ............................................................................................................ 148 4.2.2 Free use doctrine in Germany ...................................................................................... 154 4.3 UGC Exception and User Rights in Canada ....................................................................... 159 4.3.1 Canada‘s exception for non-commercial user-generated content ................................ 160 4.3.2 User‘s rights in Canada ................................................................................................ 168 4.4 Parody Exceptions .............................................................................................................. 171 4.4.1 Limited scope of parody exceptions ............................................................................ 173 4.4.2 Commercialising
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