With the advent of the internet and the rise of social networks, the dynamics of creation and the ease of co-creation online has changed. Internet users regularly re-tweet and re-post the content of others on social media, often adding their own twist to content. Users can thereby be seen as effectively co-creating new works, be it through intentional collaborations or not.
This productivity however proves to be a double-edged sword, as it has led to a flourishing social culture online, but is also conduct that implicates potential IP infringement, creating tension between the original authors/owners of works and the subsequent co-creators. Identifying the IP right holders may become increasingly complicated in the online environment, when works and digital goods are simultaneously or subsequently co-created by several people. In particular, questions regarding the ownership of works resulting from the co-creation process and issues relating to the right enforcement strategy can ensue in this context. Consequently, monitoring infringement and enforcing intellectual property rights becomes more challenging. Furthermore, the IP management of co-owned works (for copyright) or inventions (for patents) becomes especially problematic when the value of the respective individual contribution is hard to identify and to measure. In light of the fact that laws on IP co-authorship and collective works in Europe is not fully harmonised, this poses particular challenges.
Since intellectual property often takes on a life of its own online, we will address the questions: What happens when an original work is altered and co-created into a new work online, to a degree that it is completely divorced from the original work? Can a balance be struck to accommodate all stakeholders and their interests? What value can there exist for brands to encourage co-creation involving their trade marks? Is expanding IP law clashing with the trend of co-creation and can both co-exist? We will use the phenomenon of online memes as a starting point of our discussion about co-created works.
Stacy Lantagne, ‘Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication’ (April 1, 2017) available at SSRN: https://ssrn.com/abstract=2944804 or http://dx.doi.org/10.2139/ssrn.2944804.
On the intersection of traditional trade marks and co-creation: Deven Desai, From Trademarks to Brands (August 28, 2012). Florida Law Review, Vol. 64, No. 4, p. 981, 2012; Thomas Jefferson School of Law Research Paper No. 2137766. Available at SSRN: https://ssrn.com/abstract=2137766
Tracy Harwood and Tony Garry, ‘Co-creation and Ambiguous Ownership within Virtual Communities: the Case of the Machinima Community’ (2014) 13(2) Journal of Consumer Behaviour 148.
Available at: https://onlinelibrary.wiley.com/doi/full/10.1002/cb.1437
C Baldwin and E von Hippel, `Modeling a Paradigm Shift: From Producer Innovation to User and Open Collaborative Innovation’ (2010). Harvard Business School Finance Working Paper No 10-038; MIT Sloan Research Paper No 4764-09. Available at SSRN: https://ssrn.com/abstract=1502864 or http://dx.doi.org/10.2139/ssrn.1502864
On the origin of ‘meme’: Dawkins, The Selfish Gene: 30th Anniversary Edition (Oxford University Press (2006) 192.
On the challenges of co-creation in the 3D printing context: R M Ballardini, J Lindman & Ituarte I Flores, ‘Co-creation, commercialization and intellectual property - challenges with 3D printing’, in European Journal of Law and Technology, Vol 7, No 3, 2016.
Available at: http://ejlt.org/article/view/497/688
On the benefits of co-creation in marketing generally: C.K. Prahalad and Venkat Ramaswamy (2004) "Co‐creating unique value with customers", Strategy & Leadership, Vol. 32 No. 3, pp. 4-9 available at: https://doi.org/10.1108/10878570410699249
On the prosumer movement: Toffler, A. The Third Wave; Bantam Books: New York, NY, USA, (1981)