User created content in virtual worlds and cultural diversity

Governance of Digital Game Environments and Cultural Diversity: Transdisciplinary Enquiries

Volumn , Issue , 2010, Pages 74-112

  Burri Nenova, Mira ^a  

^a UNIVERSITY OF BERN   (Switzerland)

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References (164)

1. Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom, New Haven: Yale University Press, 2006, at p. 2.
2. Mira Burri-Nenova, 'The New Audiovisual Media Services Directive: Television without Frontiers, Television without Cultural Diversity' (2007) Common Market Law Review 44:6, pp. 1689-1725.
3. See chapter 1.
4. http://secondlife.com/. Other examples are There.com (www.there.com), The Sims Online (http://thesims.ea.com) and Activeworlds (www.activeworlds.com).
5. www.worldofwarcraft.com.
6. OECD defines UCC as (i) content made publicly available over the Internet; (ii) which reflects a 'certain amount of creative effort'; and (iii) which is 'created outside of professional routines and practices' (OECD, Participative Web: User-created Content, DSTI/ICCP/IE(2006)7/FINAL, 12 April 2007, at pp. 4; 8-9). We downplay here the last criterion not only because the line between fun and work becomes blurred but also because professional artists, private companies and public institutions are increasingly becoming major contributors of content (Nick Yee, 'The Labor of Fun: How Video Games Blur the Boundaries of Work and Play' (2006) Games and Culture 1:1, pp. 68-71).
7. UNESCO, Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted by the 33rd Session of the General Conference, 20 October 2005, Paris; entry into force 18 March 2007. Hereinafter the UNESCO Convention.
8. Article 4(3) UNESCO Convention. As Article 4(2) clarifies, 'cultural content' is to be understood as 'the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities'. On the concept of culture underlying the UNESCO Convention,
9. Christoph Beat Graber, 'Substantive Rights and Obligations under the UNESCO Convention on Cultural Diversity' in Hildegard Schneider and Peter van den Bossche (eds.), Protection of Cultural Diversity from an International and European Perspective, Antwerp: Intersentia, 2008, pp. 141-62, at pp. 143-5.
10. Herman et al. note however that the legal status of both categories in terms of real-life intellectual property may be the same.
11. Andrew Herman, Rosemary J. Coombe and Lewis Kaye, 'Your Second Life? Goodwill and the Performativity of Intellectual Property in Online Digital Gaming' (2006) Cultural Studies 20:2/3, pp. 184-210, at p. 205, endnote 6. On IP, see infra section 3.1.3.
12. See chapter 2.
13. See chapter 7.
14. In the US, courts have recognised much simpler games, such as first person shooter games, as artistic expressions protected under the First Amendment. argumentum a fortiori, MMORPGs will also qualify as such.
15. Jack M. Balkin, 'Law and Liberty in Virtual Worlds' (2004) New York Law School Law Review 49, pp. 63-80, at p. 69, referring among other cases to Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954 (8th Cir. 2003); American Amusement Mach. Ass'n v. Kendrick, 244 F. 3d 572 (7th Cir. 2001); Sanders v. Acclaim Entm't, Inc., 188 F. Supp. 2d 1264 (D. Colo. 2002). In Europe, the practice is less straightforward although moving in the same direction.
16. European Commission, Decision of 11 December 2007 on State Aid C 47/06, Tax credit introduced by France for the creation of video games, OJ L 118/16, 6 May 2008 and chapter 7, this volume.
17. John Baldrica, 'Mod as Heck: Frameworks for Examining Ownership Rights in User-Contributed Content to Videogames, and a More Principled Evaluation of Expressive Appropriation in User-Modified Videogame Projects' (2007) Minnesota Journal of Law, Science and Technology 8:2, pp. 681-713, at p. 687
18. According to the established practice, both in the EC and in the US, the relevant product/service market comprises all those products or services that are sufficiently interchangeable or substitutable to the consumer, not only in terms of their objective characteristics, by virtue of which they are particularly suitable for satisfying the constant needs of consumers, their prices or their intended use, but also in terms of the conditions of competition and/or the structure of supply and demand on the market in question. The SSNIP test proves the interchangeability by introducing a hypothetical small (in the range of 5-10%) permanent increase in the price of product A to see whether this price increase would make customers switch to product B as a readily available alternative, and whether they would do so to an extent sufficient to make the price increase unprofitable.
19. In addition, some games are not one-off consumption products, but rather dynamic networks with strong network effects that need to be examined over a period of time.
20. See Pierre Larouche, 'Relevant Market Definition in Network Industries: Air Transport and Telecommunications' (2000) Journal of Network Industries 1, pp. 407-45
21. Pierre Larouche, 'A Closer Look at Some Assumptions Underlying EC Regulation of Electronic Communications' (2002) Journal of Network Industries 3, pp. 129-49.
22. Which distinguishes games from other UCC platforms, for instance Flickr (for pictures) or YouTube (for videos).
23. Johan Huizinga, Homo Ludens: A Study of the Play Element in Culture, Boston: Beacon Press, 1985 (first published 1938).
24. Jan H.G. Klabbers, The Magic Circle: Principles of Gaming and Situation, Rotterdam/Taipei: Sense Publishers, 2006.
25. Salen and Zimmerman build upon the notion of the 'magic circle' and understand the 'meaningful play' as all actions and outcomes within a magic circle that add to the emotional and psychological experience of playing the game.
26. Katie Salen and Eric Zimmermann, Rules of Play: Game Design Fundamentals, Cambridge, MA: MIT Press, 2004. 21 On the concept of 'situated play',
27. Digital Games Research Association (DiGRA), Situated Play, Proceedings of DiGRA 2007 Conference, available at www.digra.org/dl. 22 T.L. Taylor, Play between Worlds: Exploring Online Game Culture, Cambridge, MA: MIT Press, 2006.
28. Dmitri Williams, Nicolas Ducheneaut, Li Xiong Yuanyuan Zhang, Nick Yee and Eric Nickell, 'From Tree House to Barracks: The Social Life of Guilds in World of Warcraft' (2006) Games and Culture 1:4, pp. 338-61. On video games as contexts for the circulation, interpretation and deployment of meaning,
29. Ian Bogost, 'The Rhetoric of Video Games' in Katie Salen (ed.), The Ecology of Games: Connecting Youth, Games, and Learning, Cambridge, MA: MIT Press, 2008, pp. 117-40.
30. Greg Lastowka, 'User-Generated Content and Virtual Worlds' (2008) Vanderbilt Journal of Entertainment and Technology Law 10, pp. 893-917, at pp. 897-8.
31. 'Ludology' is the newly coined term for game studies, which are interdisciplinary and analyse games from the perspective of social sciences and humanities, as well as design and engineering.
32. Although both Pong and Pac-Man have been used as a basis for further cultural creation.
33. Cory Ondrejka, 'Escaping the Gilded Cage: Building the Metaverse' (2004) New York Law School Law Review 49:1, pp. 81-101.
34. See http://secondlife.com/whatis.
35. Todd David Marcus, 'Fostering Creativity in Virtual Worlds: Easing the Restrictiveness of Copyright for User-Created Content' (2007/2008) New York Law School Law Review 52, pp. 67-92, at pp. 73-5.
36. Aimee Weber, Kimberley Rufer-Bach and Richard Platel, Creating Your World: The Official Guide to Advanced Content Creation for Second Life, New York: Wiley and Sons, 2007.
37. Hilde G. Corneliussen and Jill Walker Rettberg, Digital Culture, Play and Identity: A World of Warcraft Reader, Cambridge, MA: MIT Press, 2008.
38. Blizzard Entertainment, 'World of Warcraft Subscriber Base Reaches 11.5 Million Worldwide', Blizzard Entertainment Press Release, 23 December 2008, available at www.blizzard.com/us/press/081122.html
39. Viktor Mayer-Schönberger and John Crowley, 'Napster's Second Life?: The Regulatory Challenges of Virtual Worlds' (2006) Northwestern University Law Review 100:4, pp. 1775-826, at p. 1786.
40. For more on machinima, see infra section 2.1.3.
41. There are games that would not neatly fit into either of the categories defined. The 2008 released game Spore, for instance, which came out of the work of the author of the Sims, Will Wright, enables players to control the evolution of a speciesfrom its beginnings as a unicellular organism, through development as an intelligent and social creature, to interstellar exploration. It is a 'massively single-player online game', which develops procedurally. See www.spore.com.
42. On the complex representation of users in the design of digital games, Aphra Kerr, 'Representing Users in the Design of Digital Games' in Frans Mäyrä (ed.), Proceedings of Computer Games and Digital Cultures Conference, Tampere: Tampere University Press, 2002, pp. 277-95.
43. Henry Lowood, 'High-Performance Play: The Making of Machinima' (2006) Journal of Media Practice 7:1, pp. 25-42.
44. Edward Castronova, Synthetic Worlds: The Business and Culture of Online Games, Chicago: University of Chicago Press, 2005, at pp. 139-40.
45. For the first attempts of 'teleporting',
46. Linden Lab, 'Linden Lab and IBM Achieve Major Virtual World Interoperability Milestone: Open Grid Protocol Enables Avatars to Teleport between Second Life and OpenSim Virtual Worlds', Linden Lab Press Release, 8 July 2008, available at http://lindenlab.com/pressroom/releases/ 07_08_08
47. Also because it influences the other two: with regard to price, because of the size of the investment in the production and the support of the game; with regard to the regulatory framework within virtual worlds, because this set of rules is intertwined in and dependent upon the content of the game.
48. Carl Shapiro and Hal R. Varian, Information Rules, Cambridge, MA: Harvard Business School Press, 1999, at pp. 173-225.
49. Dave Kosak, 'The Future of Massively Maultiplayer Gaming: A Visionary Panel', GameSpy, November 2003
50. Christina J. Hayes, 'Changing the Rules of the Game: How Video Game Publishers Are Embracing User-Generated Derivative Works' (2008) Harvard Journal of Law and Technology 21:2, pp. 567-87.
51. See Lawrence Lessig, Code and Other Laws of Cyberspace, New York: Basic Books, 1999 and the updated version, Lawrence Lessig, Code: Version 2.0, New York: Basic Books, 2006.
52. Nicola Lucchi, 'The Supremacy of Techno-Governance. Privatization of Digital Content and Consumer Protection in the Globalized Information Society (2007) International Journal of Law and Information Technology 15:2, pp. 192-225.
53. Andrew Jankowich, 'EULAw: The Complex Web of Corporate Rule-Making in Virtual Worlds' (2006) Tulane Journal of Technology and Intellectual Property 8, pp. 1-58.
54. Castronova, who has argued in favour of restrictive EULAs in order to keep the game space 'pure' and unencumbered by reallife property laws (Edward Castronova, 'The Right to Play' (2004) New York Law School Law Review 49:1, pp. 185-210).
55. 'Expulsion as an enforcement mechanism is effective because participants in virtual worlds incur significant social and financial costs when they are forced to leave. They not only have to leave behind a network of friends and their accumulation of social and other capital, but also are forced to abandon the persistent narrative that they have constructed around their avatar'.
56. James Grimmelmann, 'Virtual Worlds as Comparative Law' (2004) New York Law School Law Review 49:1, pp. 147-84, at pp. 176-8.
57. e.g. in publishing.
58. Chris Anderson, 'The Long Tail', 12:10 Wired, October 2004 and Chris Anderson, The Long Tail: Why the Future of Business Is Selling Less of More, New York: Hyperion, 2006). The name has to do with the image of a demand curve that gets longer and longer and covers more and more niche 'non-hit' products. Anderson's theory builds upon substantiated previous and parallel economic research.
59. Erik Brynjolfsson, Yu Hu and Michael D. Smith, 'Consumer Surplus in the Digital Economy: Estimating the Value of Increased Product Variety at Online Booksellers' (2003) MIT Sloan Working Paper No 4305
60. Erik Brynjolfsson, Yu Hu and Michael D. Smith, 'From Niches to Riches: The Anatomy of the Long Tail' (2006) Sloan Management Review 47:4, pp. 67-71
61. Erik Brynjolfsson, Yu Hu and Duncan Simester, 'Goodbye Pareto Principle, Hello Long Tail: the Effect of Search Costs on the Concentration of Product Sales' (2007) MIT Center for Digital Business Working Paper. For an overview of the 'long tail' theory and some of its implications for regulation of media markets and for cultural diversity,
62. Mira Burri-Nenova, 'Tradeversus Culture in the Digital Environment: An Old Conflict in Need of a New Definition' (2009) Journal of International Economic Law 12:1, pp. 17-62.
63. Especially if there is a move towards more digital download platforms and networks that support the self-publishing business model and that are not just a replication of the high street retail model. This will allow independent publishers to compete on a more equal footing with the larger entertainment media companies.
64. Screen Digest et al., Interactive Content and Convergence: Implications for the Information Society, A Study for the European Commission (DG Information Society and Media), October 2006, section 2.4.5.3 at p. 113.
65. Panel, 'User-Created Content and Program-Modification in Video Games and Virtual Worlds', presented at the Conference 'Meaningful Play 2008', Michigan State University, East Lansing. MI, 9-11 October 2008, available at http://meaningfulplay.msu.edu/program.php?detailed=1
66. Exemplifying this is the fact that in 2003, eight of the top ten selling PC video games included bundled editors allowing users to manipulate and create in-game characters and generate new game worlds.
67. Andrew V. Moshirnia and Anthony C. Walker, 'Reciprocal Innovation in Modding Communities as a Means of Increasing Cultural Diversity and Historical Accuracy in Video Games' in Situated Play: Proceedings of the DiGRA 2007 Conference, pp. 362-8, at p. 362, referring to Dave Kosak, 'The Future of Massively Multiplayer Gaming: A Visionary Panel', GameSpy, November 2003, summarising opinions of key players of the game industry.
68. See chapter 5.
69. The Economist, 'If You Build It. .', 21 August 2008.
70. Candidus Dougherty, 'Bragg v. Linden: Virtual Property Rights Litigation' (2007) E-Commerce Law and Policy 9:7.
71. Cory Ondrejka, 'Changing Realities: User Creation, Communication, and Innovation in Digital Worlds' (2005) Annenberg School of Communication Working Paper, pp. 1-23.
72. C. Edwin Baker, Media, Markets, and Democracy, Cambridge: Cambridge University Press, 2001.
73. John Quiggin and Dan Hunter, 'Money Ruins Everything' (2008) Hastings Communications and Entertainment Law Journal 30 pp. 203-55, at pp. 227-37.
74. Nick Yee, 'Motivations to Play' (2006) CyberPsychology and Behavior 9:6, pp. 772-5
75. John Banks and Sal Humphreys, 'The Labour of Co-Creators: Emergent Social Network Markets' (2008) Convergence: The International Journal of Research into New Media Technologies 14:4, pp. 401-18.
76. Under IPR as a general category, one understands the rights granted to creators and inventors to control the use made of their productions. They are traditionally divided into two main branches: (i) 'copyright and related (or neighbouring) rights' for literary and artistic works and (ii) 'industrial property', which encompasses trade marks, patents, industrial designs, geographical indications and the layout designs of integrated circuits. Most pertinent in the present context, is the discussion of copyright protection.
77. Machinima (a combination of the words 'machine' and 'cinema') is the recording and editing footage generated within the game. Machinima creators use the graphics, characters and/or sounds of a video game (normally a first person shooter or MMOG) to create a computer-animated film in real time. Red vs. Blue is perhaps one of the most famous machinima video series, which was created by Rooster Teeth Productions and chronicles the story of two opposing teams of soldiers fighting a civil war in the middle of a desolate box canyon in a parody of first person shooter games, sci-fifilms and military life. Machinima is being increasingly mainstreamed and enjoys growing popularity (www.machinima.com).
78. Henry Lowood, 'Found Technology: Players as Innovators in the Making of Machinima' in Tara McPherson (ed.), Digital Youth, Innovation, and the Unexpected, Cambridge, MA: MIT Press, 2008, pp. 165-96.
79. Matthew Brett Freedman, 'Machinima and Copyright Law' (2005) Journal of Intellectual Property Law 13, pp. 235-54.
80. Casey Fiesler, 'Everything I Need to Know I Learned from Fandom: How Existing Social Norms Can Help Shape the Next Generation of User-Generated Content' (2008) Vanderbilt Journal of Entertainment and Technology Law 10:3, pp. 729-62.
81. 'A 'derivative work' is a work based upon one or more preexisting works, such as translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted' (s. 101, US Copyright Act of 1976, contained in Title 17 of the US Code).
82. In the case Marvel v. NCSoft, for instance, Marvel, a publisher of superhero comic books, sued NCSoft, the owner of the MMOG City of Heroes, for direct and contributory copyright infringement, since the game City of Heroes allowed players to create superhero characters and customise them. The case was eventually settled, but it is worth mentioning that the court dismissed most of Marvel's claims before the settlement.
83. Marvel Enters. v. NCSoft Corp., 74 U.S.P.Q.2d 1303 (C.D. Cal. 2005).
84. 'Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: [. . ] (2) to prepare derivative works based upon the copyrighted work [. . ]' (s. 106 of the US Copyright Act).
85. The fair use doctrine as a broad category is typical to the US. Other jurisdictions, such as the UK and Canada, have the so-called 'fair dealing' exemptions for activities, such as news reporting, parody and criticism, which have been developed by the courts' practice and some legislation. Civil code countries like Germany, France and most of the other EU Member States, enumerate specifically the exemptions to copyright, which are similar in essence to those under the fair use doctrine. In the following, we refer to the US law and practice since most relevant cases until now have been in the US. Under US law, the fair use limitation on exclusive rights sets out four factors to consider: '(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copy-righted work' (s. 107 of the US Copyright Act).
86. At the EC level, copyright limitations are only partly harmonised (except for computer programs and databases). Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the Information Society (OJ L 167/10, 22 June 2001), which implemented the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (both adopted in Geneva, 20 December 1996), was also intended to clarify the permissible limitations under EC copyright law, with respect to both analogue and digital works. Such clarity, however, proved elusive and as a compromise, the Directive introduced an exhaustive list of 21 optional limitations in additionto the 'three-step-test'. The three-step-test requires that limitations and exceptions must be (i) confined to special cases; (ii) not in conflict with a normal exploitation of the work; and (iii) of no unreasonable prejudice to the legitimate interests of the author. It was first applied to the exclusive right of reproduction by Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works in 1967. Since then, it has been transplanted into the TRIPS Agreement, the EC Copyright Directive and the WIPO Copyright and Performances and Phonograms Treaties. Article 10 of the WIPO Copyright Treaty adds expressly that signatory countries may devise new exceptions and limitations that are appropriate in the digital network environment. For an overview on exceptions and limitations,
87. Paul Goldstein, International Copyright: Principles, Law and Practice, Oxford: Oxford University Press, 2001, at pp. 249-70, 292-319.
88. Michael W. Carroll, 'Fixing Fair Use' (2007) North Carolina Law Review 85, pp. 1087-154.
89. Rebecca Tushnet, 'Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It' (2004) Yale Law Journal 114:3, pp. 535-90.
90. David Nimmer, '"Fairest of Them All" and Other Fairy Tales of Fair Use' (2003) Law and Contemporary Problems 66, pp. 262-87, at pp. 267-77.
91. Jacques de Werra, 'Moving beyond the Conflict between Freedom of Contract and Copyright Policies: In Search of a New Global Policy for On- Line Information Licensing Transactions' (2003) Columbia Journal of Law and the Arts 25, pp. 239-375, at pp. 318-46.
92. Lucie M.C.R. Guibault, Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright, The Hague: Kluwer Law International, 2002.
93. Gregory Lastowka and Dan Hunter, 'The Laws of the Virtual Worlds' (2004) California Law Review 92, pp. 1-73.
94. A recent report shows that many of the user-generated video creators are not informed or are misinformed about the copyright law.
95. Pat Aufderheide and Peter Jaszi, The Good, the Bad, and the Confusing: User-Generated Video Creators on Copyright, Washington, DC: Center for Social Media, 2007.
96. Jack M. Balkin, 'Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds' (2004) Virginia Law Review 90:8, pp. 2043-98, at pp. 2049-50.
97. For instance, while the Creative Commons (cc) licence was introduced in Second Life as a potentially more flexible and less restrictive form of licensing, it has remained largely unused.
98. See Game Content Usage Rules, available at www.xbox.com/en-us/ community/developer/rules.htm
99. See Letter to the Machinimators of the World, available at www.worldofwarcraft. com/community/machinima/letter.html
100. Andrew Leyshon, 'Scary Monsters? Software Formats, Peer-to-peer Networks, and the Spectre of the Gift' (2003) Environment and Planning D: Society and Space 21:5, pp. 533-58.
101. Such machinima-like creations may in fact enjoy more freedom without the licence. In Mattel v. MCA Records, 296 F. 3d 894 (9th Cir. 2002), e.g., the Court of Appeals for the Ninth Circuit found that 'Barbie Girl' by the Dutch band Aqua, which allegedly infringed Mattel's trademark of Barbie, was not purely commercial speech and therefore fully protected under the First Amendment.
102. For some proposals on copyright law reform, Lawrence Lessig, Free Culture, London: Penguin, 2004, at pp. 287-306 and Pamela Samuelson, 'Preliminary Thoughts on Copyright Reform' (2007) Utah Law Review 3, pp. 551-71.
103. Wendy J. Gordon and Daniel Bahls, 'The Public'sRight to Fair Use: Amending Section 107 to Avoid the "Fared Use" Fallacy' (2007) Utah Law Review 3, pp. 619-58.
104. Urs Gasser and Silke Ernst, 'From Shakespeare to DJ Danger Mouse: A Quick Look at Copyright and User Creativity in the Digital Age' (2006) Berkman Center for Internet and Society Research Publication No 5, at pp. 16-18.
105. www.gnu.org/licenses/gpl.html
106. http://creativecommons.org/license. Very comprehensively on cc,
107. Lydia Pallas Loren, 'Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright' (2008) George Mason Law Review 14:2, pp. 271-328.
108. In 2007, the Electronic Frontier Foundation together with other concerned organisations published its 'Fair Use Principles for User Generated Content' (see www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen). In October 2007 a few of the world's leading media companies, including CBS, Dailymotion, Fox Entertainment, Microsoft, MySpace, NBC, Sony, Veoh, Viacom and Walt Disney also announced their joint support for a set of principles that would enable the continued growth and development of user-generated content online and respect the intellectual property of content owners (see www.ugcprinciples.com/index.html).
109. There is no practical way to compare UCC across virtual worlds since it is such a complex mix of creations and practices occurring in idiosyncratic space. Data exists for some specific worlds, such as Second Life or WoW (mostly provided by the owner companies) but this does not necessarily mean that one can compare them.
110. www.runescape.com
111. These 11 games in order of reducing market share are: RuneScape (7.5%); Lineage (6.6%); Lineage II (6.3%); Final Fantasy XI (3.1%); Dofus (2.8%); EVE Online (1.5%); EverQuest II (1.2%); EverQuest (1.1%); The Lords of the Rings Online (0.9%); City of Heroes (0.8%); and Tibia (0.6%). 115 These statistics are put together by Bruce Woodcock, made available and regularly updated at www.mmogchart.com. See in particular www.mmogchart.com/ Chart7.html, last updated April 2008. Also interesting is the data provided by market share subscription by genre. There, fantasy games take 94.2% of the market, scifi/ superhero 3.7%, combat simulation/first person shooter games 0.2% and the remaining 1.9% is accounted for by puzzle/social/other (see www.mmogchart.com/Chart8.html). There are two caveats to be made with regard to this data. First, as Woodcock himself admits, the data does not cover all existing MMOGs. Secondly, the data reflects the situation of the global market. It may very well be the case that other games have stronger positions within national markets, e.g., Lineage in South Korea.
112. Amanda Lenhart et al., Teens, Video Games, and Civics, PEW Internet and American Life Project, 16 September 2008.
113. Jack M. Balkin, 'Digital Speech andDemocratic Culture: A Theory of Freedom of Expression for the Information Society' (2004) New York University Law Review 79:1, pp. 1-55
114. William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment, Stanford: Stanford University Press
115. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, London: Penguin, 2004
116. Nicholas Garnham, 'The Media and the Public Sphere' in Craig Calhoun (ed.), Habermas and the Public Sphere, Cambridge, MA: MIT Press, pp. 359-76.
117. Benkler frames this argument in a negative way and claims that, 'increases in costs [of becoming a producer of information] lead to three effects: (i) Concentration - because the cost of becoming a professional provider of the type whose activity is facilitated by the regulation creates an entry barrier; (ii) Commercialisation - because of the high cost providers must adopt a strategy that relies on sale of their information and cultural products, and it becomes more difficult to sustain production on a noncommercial model; (iii) Homogenisation - because most producers must be commercial, their reasons to produce are similar, and their need to attract wide audiences leads to convergence of the content towards the mainstream and the inoffensive'.
118. Yochai Benkler, 'From Consumers to Users: Shifting the Deeper Structures of Regulation toward Sustainable Commons and User Access' (2000) Federal Communications Law Journal 52, pp. 561-79, at p. 576.
119. Peter S. Jenkins, 'The Virtual World as a Company Town - Freedom of Speech in Massively Multiple On-line Role Playing Games' (2004) Journal of Internet Law 8:1.
120. Reuters and BBC for instance joined Second Life back in 2006.
121. Article 4(3) UNESCO Convention.
122. Andrew Keen, The Cult of the Amateur: How Today's Internet Is Killing Our Culture, New York: Currency, 2007).
123. Cass R. Sunstein, 'Deliberative Trouble? Why Groups Go to Extremes' (2000) Yale Law Journal 110:1, pp. 71-120 and Cass R. Sunstein, Republic 2.0, Princeton, NJ: Princeton University Press, 2007).
124. Henry Jenkins, Textual Poachers: Television, Fans and Participatory Culture, Oxford: Routledge, 1992.
125. Henry Jenkins, Convergence Culture: Where Old and New Media Collide, Cambridge, MA: MIT Press, 2006. In the same vein, Coombe and Herman state: 'The Web provides unprecedented opportunities for new and dynamic dialogues between producers of products and imagery and those who consume them. It enables consumers themselves to become producers of mass culture and permits corporate producers to become better consumers of alternative meanings and of customer opinion'.
126. Rosemary J. Coombe and Andrew Herman, 'Culture Wars on the Net: Intellectual Property and Corporate Propriety in Digital Environment' (2001) The South Atlantic Quarterly 100:4, pp. 919-47, at p. 921.
127. Paula Kay Hooper, They Have Thoughts of Their Own: Children's Learning of Computational Ideas from a Cultural Constructionist Perspective, Cambridge, MA: MIT Press, 1998.
128. T.L. Taylor, 'Pushing the Borders: Player Participation and Game Culture' in Joe Karaganis (ed.), Structures of Participation in Digital Culture, New York: Social Science Research Council, 2007, pp. 113-30.
129. Jack Goldsmith and Tim Wu, Who Controls the Internet? Illusions of a Borderless World, Oxford: Oxford University Press, 2006.
130. Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski and Jonathan Zittrain, Access Denied: The Practice and Policy of Global Internet Filtering, Cambridge, MA: MIT Press, 2007.
131. The Audiovisual Media Service Directive (AVMS) of the EC, for instance, which updated the previous Television without Frontiers Directive and extended its scope to cover all types of audiovisual media services, includes some soft provisions on cultural diversity for on-demand media services and preserved the quota system for linear services. See Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, last amended by Directive 2007/65/EC of 11 December 2007, OJ L 332/27, 18 December 2007.
132. See chapter 7.
133. Tom O'Regan and Ben Goldsmith, 'Making Cultural Policy: Meeting Cultural Objectives in a Digital Environment' (2006) Television and New Media 7:1, pp. 68-91, at p. 88.
134. Madhavi Sunder, 'Cultural Dissent' (2001) Stanford Law Review 54, pp. 495-567, at p. 498.
135. Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization, Minneapolis, MN: University of Minnesota Press, 1996, at p. 48
136. Arif Dirlik, The Postcolonial Aura: Third World Criticism in the Age of Global Capitalism, Boulder, CO: Westview Press, 1998, at p. 72.
137. Yudhishtir Raj Isar, 'Cultural Diversity' (2006) Theory, Culture and Society 23:2/3, pp. 371-5, at p. 372, referring to Nick Stevenson, Cultural Citizenship: Cosmopolitan Questions, Maidenhead: Open University Press, 2003, at p. 62.
138. Rachael Craufurd Smith, 'The UNESCO Convention on the Protection and Promotion of Cultural Expressions: Building a New World Information and Communication Order?' (2007) International Journal of Communication 1, pp. 24-55.
139. Article 1(g) UNESCO Convention.
140. Michael Walzer is one of the advocates of 'separate spheres' of the commodified and non-commodified worlds, even thinking that 'when such separate spheres come into contact they contaminate each other'.
141. Michael Walzer, Spheres of Justice: A Defence of Pluralism and Equality, New York: Basic Books, 1983.
142. Margaret Jane Radin, Contested Commodities, Cambridge, MA: Harvard University Press, 1996, at p. 46
143. Joan C. Williams and Vivian A. Zelizer, 'To Commodify or Not to Commodify: That Is Not the Question' in Martha M. Ertman and Joan C. Williams (eds.), Rethinking Commodification: Cases and Readings in Law and Culture, New York: New York University Press, 2005, pp. 362-82.
144. Julie E. Cohen, 'The Place of the User in Copyright Law' (2005) Fordham Law Review 74, pp. 347-74, at p. 373.
145. The AVMS includes a soft-law provision for non-linear media services, which creates an obligation for the Member States to ensure that media service providers under their jurisdiction 'promote, where practicable and by appropriate means, production of and access to European works'. It is further clarified that such promotion could relate, inter alia, to the financial contribution to the production and rights acquisition of European works or to the share and/or prominence of European works in the catalogue of programmes. See Article 3(i)(1) AVMS.
146. The definition of European work is based merely on the construct that a majority of its authors and workers reside in one or more Member States and comply with one of the three conditions: (a) the work is made by one or more producers established in a Member State or States party to the European Convention on Transfrontier Television of the Council of Europe; (b) the production is supervised and actually controlled by producer(s) established in one or more of those States; or for co-productions © the contribution of co-producers of those States to the total co-production costs is preponderant and the co-production is not controlled by producer(s) established outside those States. See Article 1(n)(i)-(iii) AVMS.
147. For a detailed and more differentiated analysis, see chapter 7.
148. Article 87(3)(d) EC Treaty. There are a number of other specialised support schemes for the cultural industries. Decision No 1718/2006/EC of the European Parliament and the Council of 15 November 2006 concerning the implementation of a programme of support for the European audiovisual sector (MEDIA 2007), OJ L 327/12, 24 November 2006, and chapter 7.
149. José-Antonio Garcia and Damien Neven, 'State Aid and Distribution of Competition: A Benchmark Model' (2005) HEI Working Paper 6.
150. Bruno S. Frey, 'State Support and Creativity in the Arts: Some New Considerations' (1999) Journal of Cultural Economics 23, pp. 71-85.
151. See chapter 7.
152. The British Broadcasting Company (BBC) has already experimented in this field. See Ofcom, ANew Approach to Public Service Content in the Digital Media Age: The Potential Role of Public Service Publisher, Ofcom Discussion Paper, 24 January 2007.
153. Jamie Cowling and Damien Tambini (eds.), From Public Service Broadcasting to Public Service Communications, London: Institute for Public Policy Research, 2004.
154. See www.metaplace.com/information/about.
155. David Rolfe et al., Study on the Application of Measures Concerning the Promotion of the Distribution and Production of European Works in Audiovisual Media Services, Draft Final Report, 21 October 2008, at pp. 305 et seq. See also chapter 7 in this volume.
156. Jason T. Kunze, 'Regulating Virtual Realms Optimally: The Model End User License Agreement' (2008) Northwestern Journal of Technology and Intellectual Property 7:1, pp. 101-18
157. Erez Reuveni, 'On Virtual Worlds: Copyright and Contract Law at the Dawn of the Virtual Age' (2007) Indiana Law Journal 82, pp. 261-308.
158. On such initiatives with regard to the protection of minors, see chapter 8.
159. Erez Reuveni, 'Authorship in the Age of Conducer' (2007) Journal of the Copyright Society of the USA 54, pp. 285-343.
160. Michael J. Madison, 'A Pattern-Oriented Approach to Fair Use' (2004) William and Mary Law Review 45, pp. 1525-690, at p. 1625.
161. Article 7(1) UNESCO Convention (emphasis added).
162. Ellen P. Goodman, 'Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets' (2004) Berkeley Technology Law Journal, pp. 1389-472, at pp. 1395-9.
163. James Gee, What Video Games Have to Tell Us about Learning and Literacy, New York: Palgrave, 2001
164. John Palfrey and Urs Gasser, Born Digital: Understanding the First Generation of Digital Natives, New York: Basic Books, 2008.