COPYRIGHT OBSERVANCE IN THE DIGITAL AGE: NORMS AND PRACTICES IN ONLINE FANFICTION COMMUNITIES By MINH THY VAN PHAM A thesis submitted in partial fulfilment of the requirements of Bir
Trang 1COPYRIGHT OBSERVANCE IN THE DIGITAL AGE:
NORMS AND PRACTICES IN ONLINE
FANFICTION COMMUNITIES
By MINH THY VAN PHAM
A thesis submitted in partial fulfilment of the requirements of
Birmingham City University for the degree of
Doctor of Philosophy
Birmingham City University
March 2021
Faculty of Business, Law and Social Sciences
DaihocDaNang
Trang 2ACKNOWLEDGEMENTS
I am indebted to the International Cooperation Department – the Ministry of Education and Training of Vietnam for granting me a scholarship to fulfil my PhD study in the United Kingdom
My utmost thanks to Dr Anne Richardson Oakes, who has supported me during this journey constructively and fairly Thank you for convincing me that tough comments sometimes are blessings Without her, this thesis may itself have become fiction Many thanks to Dr Ewan Kirk for his insightful comments and encouragement for my research There are few people with whom I can share my love for fanfiction I am hugely grateful to Matt Gee for his invaluable guidance and constructive feedback on the corpus linguistics chapter, which is the most challenging part of my thesis
I would like to express my deepest appreciation to my beloved family – my parents, my aunt and my younger sister for their unwavering love and support Thanks for always being there with me when there was none
Finally, the past few years have been tough, especially with all the extraordinary challenges posed by the Covid-19 pandemic Without you all, I would never make it this far
DaihocDaNang
Trang 3ABSTRACT
Within online communities, social norms that set behavioural standards play a crucial role in the overall survival and core values of the community – particularly in the context of being at risk of litigation For communities where the members actively participate in creative activities and therefore, have to make decisions about copyright every day, it is very important to understand what these norms are, how community members construct and enforce them effectively In this PhD research, I study the online fanfiction communities, a creative community dedicated to producing and promoting fanfiction – fictional writing written by fans based on their favourite canon work Facing the risk of being sued by copyright holders despite their innocent intent, and the absence of applicable law, these communities have developed and enforced several strong, well-established copyright norms to maintain their “sanctuary.” Through ten fanfiction sites’ terms and conditions, and online copyright discussions between the members from four online fanfiction communities, I examine social norms that have been sufficiently effective at protecting the communities from copyright holders’ unwanted attention Using content analysis and corpus linguistics, I identify the disconnect between what
is prescribed by law and what is understood and adhered to by online users From that, the research highlights the intersection of social norms with law, and suggest how copyright should change to accommodate better new generations of artistic creation
DaihocDaNang
Trang 4TABLE OF CONTENT
CHAPTER 1 1
INTRODUCTION 1
1.1 RESEARCH CONTEXT 1
1.2 LITERATURE REVIEWS 5
1.2.1 Social norms as a mean of social control 6
1.2.2 Social norms and online fanfiction communities 11
1.2.3 Casey Fiesler’s contribution to the field 17
1.3 CONTRIBUTION TO THE KNOWLEDGE 21
1.4 RESEARCH QUESTIONS AND METHODOLOGIES 23
1.5 OVERVIEW OF CHAPTERS 23
CHAPTER 2 26
AN OVERVIEW OF INTERNATIONAL COPYRIGHT LAW 26
2.1 MAJOR INSTITUTIONS AND ACTORS OF INTERNATIONAL COPYRIGHT 26
2.1.1 The World Intellectual Property Organisation 26
2.1.2 The World Trade Organisation 27
2.2 INTERNATIONAL FRAMEWORK OF COPYRIGHT LAW 28
2.2.1 Major instruments of international copyright law 28
2.2.2 Existing norms of international copyright law 32
2.3 CONCLUSION 53
CHAPTER 3 56
CHALLENGES TO COPYRIGHT ENFORCEMENT IN THE DIGITAL AGE 56
3.1 CHALLENGES POSED BY THE INTERNET AND DIGITAL TECHNOLOGIES TO COPYRIGHT ENFORCEMENT 56
3.1.1 The impacts of the Internet and digital technologies on copyright 56
3.1.2 Conflicts of law 59
3.2 IMPORTANT ROLES OF INTERNET SERVICE PROVIDERS IN COPYRIGHT ENFORCEMENT 74
3.2.1 Secondary liability of Internet Service Providers 74
3.2.2 “Safe harbour” provisions 76
3.3 CONCLUSION 83
CHAPTER 4 84
COPYRIGHT IMPLICATIONS IN FANFICTION 84
4.1 BACKGROUND OF FANFICTION 85
4.2 THE IMPLICATIONS OF COPYRIGHT IN FANFICTION 89
4.2.1 The first question: Are fictional characters protected by copyright law? 90
4.2.2 The second question: If fictional characters are copyrightable, does fanfiction violate exclusive rights of the copyright holders? 96
DaihocDaNang
Trang 54.2.3 The third question: Is fanfiction eligible for copyright exception and limitation? 100
4.3 CONCLUSION 106
CHAPTER 5 108
INTERPLAY OF DIFFERENT NORMS IN ONLINE FANFICTION COMMUNITIES 108
5.1 SOCIAL NORMS IN ONLINE FANFICTION COMMUNITIES 108
5.1.1 Legal norms 109
5.1.2 Contractual obligations 110
5.1.3 Hierarchy of norms 116
5.2 INFORMAL NORM ENFORCING MECHANISM 119
5.2.1 Sanctions 120
5.2.2 Norm internalisation 123
5.3 CONCLUSION 125
CHAPTER 6 126
USING NORMS TO REGULATE ONLINE FANFICTION COMMUNITIES 126
6.1 METHODOLOGY 126
6.1.1 Content Analysis 126
6.1.2 Corpus Linguistics 132
6.2 ETHICAL CONSIDERATIONS 145
6.3 RESULTS 146
6.3.1 Copyright norms in the formal policies of online fanfiction communities 146
6.3.2 Informal Copyright Enforcement Mechanism 153
6.3.3 Using corpus linguistics to examine community-based norms 159
6.4 DISCUSSION 201
6.4.1 Norm identification 201
6.4.2 Norm formation 203
6.4.3 Norm Enforcement 209
6.5 CONCLUSION 210
CHAPTER 7 212
CONCLUSION 212
7.1 CONCLUSION ON THE RESEARCH QUESTIONS 212
7.2 REVIEW OF THE METHODOLOGY 219
7.2.1 Content Analysis 220
7.2.2 Corpus Linguistics 221
7.3 CONCLUSION 225
BIBLIOGRAPHY 227
APPENDIX 238
DaihocDaNang
Trang 6LIST OF TABLES
tokens
143
communities
210 DaihocDaNang
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DaihocDaNang