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If You Love Something, Set It Free? Open Content Copyright Licensing and Creative Cultural Expression

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If You Love Something, Set It Free? Open Content Copyright Licensing and Creative Cultural Expression Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 11-22-2019 If You Love Something, Set it Free? Open Content Copyright Licensing and Creative Cultural Expression Giuseppe Roberto Tarantino Osgoode Hall Law School of York University Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/phd Part of the Law Commons Recommended Citation Tarantino, Giuseppe Roberto, "If You Love Something, Set it Free? Open Content Copyright Licensing and Creative Cultural Expression" (2019). PhD Dissertations. 58. https://digitalcommons.osgoode.yorku.ca/phd/58 This Dissertation is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in PhD Dissertations by an authorized administrator of Osgoode Digital Commons. IF YOU LOVE SOMETHING, SET IT FREE? OPEN CONTENT COPYRIGHT LICENSING AND CREATIVE CULTURAL EXPRESSION GIUSEPPE ROBERTO TARANTINO A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONTARIO May 14, 2019 © Giuseppe Roberto Tarantino, 2019 ABSTRACT This dissertation seeks an answer to the question of when open content copyright licences can be most productively used to facilitate the creation and dissemination of cultural expression. Conventional copyright licences emphasize control and the policing of infringing activity. By identifying the circumstances in which open, permissive, and simple-to-understand copyright licensing models can successfully be employed, this dissertation provides a heuristic that articulates when open content licensing can be used to help foster creativity, dialogic collaboration and iterative cultural expression. Using communicative copyright, an account inspired by the relational author approach of Carys Craig, as a theoretical framework, this dissertation posits that copyright licensing is best understood not as a mechanism for maximizing monetary returns, but instead as a mechanism for increasing creative participation and communication among community members. Employing the insights of the communicative account, and synthesizing the work of scholars from a range of disciplines, this dissertation sets forth a comprehensive definition for open content copyright licences and identifies a matrix of “success indicia” for the use of such licences, arrayed in sets of characteristics categorized by whether they pertain to the licensor, the work, the community, and the market. At the heart of this research project is a case study of the use of the Open Game License (“OGL”) in connection with the Dungeons & Dragons role-playing game – and how that licensing model has resulted in a vibrant community that creates, remixes and shares open content. The fieldwork for this research project uses a qualitative empirical method in the form of semi-structured interviews with role-playing game publishers and players, along with content analysis of online statements regarding the use of the OGL, such as those found in interviews, blog posts, forum posts and comments. The findings of the fieldwork portion affirm the explanatory power of the communicative copyright account, and in turn yield an emphasis on the critical nature of the community-constitutive role of open content copyright licences. Open content copyright licences can be most productively used when licensors are committed to nurturing and facilitating a community of creatively-engaged consumers. ii DEDICATION For Heather, as with everything, and always. iii ACKNOWLEDGMENTS A dissertation is of course the end product of contributions, suggestions, support, and good wishes from an enormous number of people. Recognizing that this short acknowledgements section will leave out many of those who played some role in this project, I take this opportunity to mention some of those whose contributions and support were integral to my experience as a PhD student. I am grateful to Dr. Carys Craig, who was a fantastic supervisor, mentor, lifecoach and friend – I, and this project, benefitted greatly from her guidance and encouragement. The other members of my dissertation committee, Professor David Vaver and Dr. Theodore J. Noseworthy, also deftly helped me focus my research and prompted me to articulate my arguments clearly and comprehensively – their suggestions and critiques were crucial. Many thanks also to the other members of my examination committee, Dr. Kenneth Rogers, Dr. Saptarishi Bandopadhyay, and Professor Chistopher Buccafusco. Over the course of completing this dissertation I had the good fortune of meeting so many scholars who were so generous with their time and advice, and I’m grateful to all of them, but I would be remiss if I didn’t specifically mention Dr. Margaret Boittin, Professor Sonia Lawrence, Professor Jeremy de Beer, Dr. Courtney Doagoo, Dr. Dan Priel and (him again) Professor Christopher Buccafusco. The International Law Research Program at the Centre for International Governance Innovation (CIGI) generously provided me with a scholarship and the opportunity to be in residence at the CIGI campus, both of which were essential for completing my research project. My colleagues at Dentons Canada LLP were incredibly accommodating of my absences from practicing law, and I’m grateful to them for that. My colleague Thomas Wilson generously took the time to provide detailed comments on an early draft of Chapter 6, for which I’m thankful. Many thanks to the many friends who I had the pleasure of meeting in the Osgoode Hall Law School graduate program, most notably Aviv Gaon, Ian Stedman, Ung Shen Goh and Tamera Burnett. Endless and bottomless thanks to my mother (Karen), my sister (Silvana), and my brother-in-law (Zoltan) for everything they’ve done and continue to do for me. Also, Wellington, whose wagging tail and goofy grin was a useful and constant reminder of what is most important (i.e., sticks, treats, chasing the ball, and puppy kisses). Most importantly, my spectacular wife, Heather, without whom none of this would have been possible. I could never possibly to do justice in words to her boundless love, support, and encouragement. I am forever grateful and blessed beyond measure to be by her side. iv TABLE OF CONTENTS Abstract ................................................................................................................................................. ii Dedication ............................................................................................................................................ iii Acknowledgments .............................................................................................................................. iv Table of Contents .................................................................................................................................v Introduction ......................................................................................................................................... 1 I: Overview .................................................................................................................................. 1 II: Uncertainty, Risk, and Reassurance: The Community-Constitutive Function of Open Content Licences ....................................................................................................... 3 III: Chapter Roadmap ..................................................................................................................... 7 Chapter 1: Copyright Licensing and Copyright Justification Theories ...................................... 13 I: Introduction ................................................................................................................................ 13 II: Understanding the “Licence” .................................................................................................... 14 (a) Distinguishing Between Contract and Property .................................................................... 14 (b) Property’s Incidents .............................................................................................................. 18 (c) The Right to License in Copyright Statutes .......................................................................... 22 III: Licensing and Justification Theories ....................................................................................... 25 (a) Justification Theories ............................................................................................................ 25 (b) Consequentialist Theories .................................................................................................... 27 (c) Deontological Theories ......................................................................................................... 30 (d) Marxist Theories ................................................................................................................... 34 (e) Communicative Theories ...................................................................................................... 35 IV: Conclusion ............................................................................................................................... 37 Chapter 2: Communicative Copyright – Copyright as Cultural Conversation ........................... 41 I: Introduction – Or, Why Communicative Copyright? .................................................................
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