05 June 2012


From 10(1) TripleC: Open Access Journal for a Global Sustainable Information Society (2012) - one of the more modish journals dealing with the 'digital environment', comes 'Persona Rights for User-Generated Content: A Normative Framework for Privacy and Intellectual Property Regulation' by Tamara Shepherd and 'Atoms Want to Be Free Too! Expanding the Critique of Intellectual Property to Physical Goods' by Johan Söderberg & Adel Daoud.

Shepherd states that -
 This article introduces the term “persona rights” as a normative conceptual framework for analyzing the language of regulatory debates around privacy and intellectual property online, mainly from a Canadian perspective. In using the concept of persona rights to interrogate and critique the current limitations of regulatory discourses in protecting user rights online, the legal implications of persona rights law are translated into more conceptual terms. As a normative framework, persona rights is shown to be useful in addressing the gaps in regulatory understandings of privacy and intellectual property – particularly in spaces for user-generated content (UGC) – and in suggesting how policy might be written to account for user rights to the integrity of identity in commercial UGC platforms. 
Following from the ideals of internet regulation in the public interest, and particularly from a Canadian point of view, this paper proposes “persona rights” as a framework for considering user rights in online spaces designed for individuals to contribute their own content, or user-generated content (UGC). As a legal concept, the term persona rights refers to an individual’s control over any commercial uses of her or his identity in social web platforms.1 It thus rests on the premise that individual web users should have recourse to legal and regulatory protection of their rights to the integrity and dignity of their personal identities online. With mandates to protect user-citizen rights, developed nations such as Canada, the U.S. and the UK have shown a growing interest in safe- guarding personal identity online, as it is continually defined through policy debates about privacy and intellectual property rights. This paper presents a rhetorical analysis of such debates in recent reports from the Canadian Radio-television Telecommunications Commission (CRTC), the U.S. Federal Trade Commission (FTC), the UK’s Ofcom and the international Organisation for Economic Co-operation and Development (OECD), framed through persona rights as a normative standard for identifying and addressing some critical gaps in regulatory understandings of privacy and intel- lectual property. The current moment of commercial, contract-based regulation of UGC platforms is interrogated here according to what the persona rights framework identifies as crucial issues of user rights and the integrity of identity in user-generated content. The definition of persona rights used in this paper follows from William McGeveran’s legal formulation, where he argues that online social marketing practices entail potential threats to user rights, which might be protected under persona rights law that “transcends the narrower focus of other paradigms on protecting information privacy or preventing misleading advertising” (2009, 1154). In addition to the perhaps more familiar understandings of how online social platforms capitalize on private personal information and users’ intellectual property, the persona rights rationale sees social networks as built on the premise of endorsement. Similar to celebrity endorsement, user endorsement – comprised of both users’ private personal and network information and their work in creating UGC – be subject to “two related but distinct legal claims: the tort of appropriation and the right of publicity” in U.S. law (McGeveran 2009, 1149). By protecting against unauthorized commercial uses of one’s identity (the tort of appropriation) and maintaining monopoly control over one’s own image (the right of publicity), these two legal instruments serve the function of recogniz- ing the integrity and dignity of personal identity, in light of commercial exploitation, as sanctioned by the state. 
Some limitations of persona rights law include the significant challenge of proving dignitary, as opposed to purely monetary, harm suffered from commercial abuses of persona rights. While the impact of dignitary harm on an individual basis might be too abstract or too small to prove; “compounded through the entire society, however, a pervasive loss of identity control could be troubling” (McGeveran 2009, 1154). In addition to the limitation of scale here, there are jurisdictional consid- erations to be made when it comes to any legal mode of rights protection. While in Canada, the tort of appropriation of personality represents an admissible legal claim to commercial uses of one’s image, the right of publicity is not recognized in the same way as it is in the U.S., where celebrities retain a monopoly over any uses of their image (Hamilton 2009, 213). Yet despite this complication to a direct Canadian translation of persona rights law, McGeveran’s idea is useful here primarily as a conceptual rather than strictly legal paradigm. The concept of persona rights contributes a unique and urgent normative framework for addressing the ways that social web platforms potentially encroach on rights pertaining to personal dignity and commercial value, articulated together as persona rights of privacy and intellectual property. 
This paper offers an examination of privacy and intellectual property as persona rights, miti- gated by the context of UGC on social web platforms. The term platform is important here; as Tarleton Gillespie contends, “Whatever possible tension there is between being a ‘platform’ for em- powering individual users and being a robust marketing ‘platform’ and being a ‘platform’ for major studio content is elided in the versatility of the term and the powerful appeal of the idea behind it” (2010, 358). So while social web platforms promise a level playing field for user creativity and ex- pression, they are also bound by commercial imperatives and proprietary cultural production. This context provides the backdrop against which to discuss the parameters of user rights in UGC, framed through the lens of persona rights. 
In what follows, I examine a group of regulatory reports in terms of how they articulate persona rights as part of emerging policy frameworks for UGC. Explicit discussion of Canadian new media regulation in terms of citizenship figures most prominently in recent reports from the federal regulatory body, the CRTC, in line with the organization’s mandate to “ensure that both the broadcasting and Telecommunications systems serve the Canadian public” (CRTC 2009). The Commission’s regulatory decisions are primarily delivered according to the Broadcasting Act and the Telecommu- nications Act, both of which face challenges from the ambivalent position of new technologies and practices, such as UGC. Recent CRTC reports, like Perspectives on Canadian Broadcasting in New Media (2008) and Navigating Convergence (2010), are intended to address these challenges, through dealing with a host of regulatory concerns about new media. Such concerns include policy issues around the persona rights of privacy and intellectual property, which in Canada are often influenced by regulatory trends in both the U.S. and the UK, as well as by research from the OECD. As such, recent reports, Protecting Consumers in the Next Tech-ade (FTC 2008), Social Networking: A Quantitative and Qualitative Research Report into Attitudes, Behaviours and Use (Ofcom 2008) and Participative Web and User-Created Content: Web 2.0, Wikis and Social Networking (OECD 2007) are discussed here alongside the Canadian examples. This set of documents tends to reflect and reinforce the distinctions between online privacy – control over the disclosure and integrity of personal information online – and intellectual property – control over the distribution of proprietary creative work – evidencing the need for a concept like persona rights that links privacy and intellectual property issues through the endorsement logic that subtends commercial UGC platforms. Persona rights thus offers the heuristic value of re-framing privacy and intellectual property as inextricable concerns, both in a commercial context and in the broader sense of online sociality as an element of contemporary citizenship. So while issues of privacy and intellectual property serve as key nodes to examine within the policy literature, they also invoke a broader identity rights perspective on practices of socialization, commerce and cultural production online. 
In discussing how persona rights might fit into these overarching ecologies of UGC, the paper’s first section discusses privacy as a persona right, leading into a discussion of endorsement as the key context for tying critical accounts of online privacy to those of intellectual property. In the second section, a discussion of intellectual property as a persona right highlights how the appropriation of users’ creativity toward promotional aims maps onto regulatory considerations of original and derivative works in copyright protection. By making these ties between normative ideals around privacy and intellectual property, the following examination of the persona rights concept points toward ways that privacy and intellectual property in commercial spaces should be protected by emergent legislation. As such, the urgency of regulatory protection of persona rights demands fur- ther inquiry into its implications as a normative framework for users’ rights online.
Söderberg & Adel Daoud argue that -
“Atoms are the new bits”. That is the latest buzz arising from the Californian trade press. What do we get when this dictum is sampled with the old rallying cry: “Information wants to be free”? We suggest that the predominant, bounded critique of intellectual property is thereby destabilised. Constitutive of that critique was the exceptionality attributed to information goods (bits) vis-a-vis tangible goods (atoms). It was thus intellectual property could be presented as something altogether different from private property. We recognise that this way of framing the issue has had tactical advantages, but contend that it has stood in the way of a deeper understanding of what intellectual property is. When the critique of proprietary software is expanded by an emerging movement for open hardware development, however, the boundary between intellectual property and property as such crumbles. This enables us to renew our critique of the political economy of information.
Indeed, we all want to be free - sans care, sans responsibility and sans inconvenience.

The authors conclude -
In the present article, we have questioned the self-evident appearance of what we elect to call the information exceptionalism hypothesis. This hypothesis underpins most of the critiques against intellectual property upheld both by activists and their sympathisers in the academy. The argument is compelling because it constructs a string of statement following from something, which seem- ingly is self-evidently true. Namely, the claim that information is substantially different from material resources. We have argued that the self-evident appearance of this claim does not simply rest on it being an accurate description of what information ”really is”. Rather, it owes partly to the fact that the information exceptionalism hypothesis has been cut out of the same cloth as the economic science. Some of the matter-of-factness, which permeates the economic discipline, has thus been endowed upon this hypothesis. It is thus the critics of intellectual property are able to exploit an anomaly in the paradigm of economic science. Crucially, economics is not a science like any other, but the one which all of us have been subjected to and formed by during the past few decades of neoliberal hegemony. A key postulate of this science lays down the omnipresence of scarcity. The critics of intellectual property have discovered the radical Other of this postulate, namely: the abundance of non-rival, informational goods. Hence, the rationale for intellectual property is overthrown from within the citadel of private property. The liturgy of free markets is now being sung in praise of the information commons. The irony of this reversal is easy to appreciate, as are the tactical advantages. The price to pay, however, is that the blind spots of the economic science are duly reproduced in the critique of intellectual property. Some high-profile champions of the information commons, which we have in mind, are Lawrence Lessig and Yochai Benkler, together with their innumerable followers. There are also some shining exceptions among the legal scholars, such as James Boyle. The latter has formulated a critique of intellectual property, which incorporates the historical insights of political economy and draws parallels to the first enclosure movement. His analysis starts in a broader critique of private property and commodification as moments in a historically developed, social whole. This has not, however, been the road travelled by most critics and campaigners against intellectual property. A lot of work has instead been put into policing the borders between intellectual property and private property. A case in point is when free software advocates distinguishes between free as in “free speech” and free as in “free beer”. The point being that free software is strictly about civil rights issues, while protestations over price and markets are exempted from the struggle against the intellectual property regime. We believe that this approach has exhausted itself. This claim can be illustrated with a quote from Paolo Virno, although uttered in a completely different context. Free beer has become indistinguishable from free speech, in: "the era in which language itself has been put to work, in which language itself has become wage labour (so much so that ’freedom of speech’ nowadays means no more and no less than the ’abolition of wage labor’)” (Virno 1996, 271). 
We wish to follow the trend, which Virno hints at in the quote above but we have chosen to start from a different point of departure. It was proposed that the boundary work of hackers, activists and academics campaigning against intellectual property is being destabilised due to the introduction of a new narrative element. Namely, the exclamation that, to put it in the jargon of the Californian ideology: “atoms are the new bits”. At the centre of articulating this new imaginary are the hobbyists building open source 3D printers, the Rep-rap project. Many of them are convinced that their work will result in an expanded conflict over intellectual property, soon to encompass physical objects too. In fact, the first cannonade has already been fired. In February 2011, a DMCA takedown notice was issued for printable 3D objects. The notice was sent to Thingiverse, a repository for 3D objects used by many hobbyists in the Rep-rap community. The individual designer making the complaint, Ulrich Schwanitz, protested that an object, which he had created, an impossible shape called a ”penrose triangle”, had been reverse-engineered and uploaded to Thingiverse. Eventually he dropped the charges and released his design in the public domain. Nevertheless, in the Rep-rap community and on the Thingiverse blog, this event was hailed as a first skirmish in the upcoming struggle over 3D designs and home printing. The expectation is that once a consumer market in 3D printers has been established, many industries will start to lobby for legal protections, just as the music and film-industries did in the late 1990s. 
Without necessarily endorsing the many claims made on the behalf of the Rep-rap project, we recognise its importance for introducing a new imaginary. This imaginary suggests that there can be no stable demarcation lines between commons (in which informational resources can circulate freely) and free markets (in which property ownership over tangible goods are duly respected), ultimately grounded in the nature of the resource in-itself. Hence, where to draw the line between the two will be decided in a test of strength between opposing forces. This is essentially a political struggle, although for most part it will be mediated through technological innovation. In fact, the opportunity has already been spotted by conservative think tanks. In a re-examination of the old debate about lighthouses and public goods, one economist has observed that light is now being replaced with radio signals as a means for assisting navigation. The latter technology is designed in such a way that rent can easily be extracted from the service. The writer rejoices: Due to technological change, there are no such things as natural public goods anymore. It is only institutional inertness, which holds back the relentless expansion and intensification of markets (Foldvary 2003). Indeed, with information technology, the granularity of private property can be made infinitely small. Examples hereof abound in the new markets, which have flourished on the Internet for some time. Infinite are the ways to parse up information and provide it on a pay-per basis. And atoms are the new bits. Herein lies the truth of the expanded conflict over intellectual property. It signals a future where goods and services in “meat-space” can be charged for with the same surgical precision, as is already the case on the Internet. From the perspective of the economist of tomorrow looking back at the present situation, it will appear as if the coarse way in which we are now being charged for our goods and services amounted to an endless long tail of market failures. The opportunity to close those failures, again and again and again, will drive the expansion of Digital Right Management systems to new areas. Intellectual property and traditional property converge into what might be called “augmented property”. In the up-coming conflict over augmented property, piracy will be generalised to every corner of society. And everywhere we will hear the battle cry: atoms want to be free too!