COPYRIGHT OBSERVANCE IN THE DIGITAL AGE: NORMS AND PRACTICES IN ONLINE FANFICTION COMMUNITIES cD ho D By MINH THY VAN PHAM aN A thesis submitted in partial fulfilment of the requirements of Doctor of Philosophy Birmingham City University March 2021 Faculty of Business, Law and Social Sciences g an Birmingham City University for the degree of ACKNOWLEDGEMENTS 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 D and my younger sister for their unwavering love and support Thanks for always being there ho with me when there was none Finally, the past few years have been tough, especially with all the extraordinary challenges g an aN cD posed by the Covid-19 pandemic Without you all, I would never make it this far ABSTRACT 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 D sufficiently effective at protecting the communities from copyright holders’ unwanted attention Using content analysis and corpus linguistics, I identify the disconnect between what ho is prescribed by law and what is understood and adhered to by online users From that, the cD research highlights the intersection of social norms with law, and suggest how copyright should change to accommodate better new generations of artistic creation g an aN TABLE OF CONTENT CHAPTER INTRODUCTION 1.1 RESEARCH CONTEXT 1.2 LITERATURE REVIEWS 1.2.1 Social norms as a mean of social control 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 26 AN OVERVIEW OF INTERNATIONAL COPYRIGHT LAW 26 2.1 MAJOR INSTITUTIONS AND ACTORS OF INTERNATIONAL COPYRIGHT 26 The World Intellectual Property Organisation 26 2.1.2 The World Trade Organisation 27 2.2 D 2.1.1 INTERNATIONAL FRAMEWORK OF COPYRIGHT LAW 28 ho Major instruments of international copyright law 28 2.2.2 Existing norms of international copyright law 32 2.3 cD 2.2.1 CONCLUSION 53 aN CHAPTER 56 CHALLENGES TO COPYRIGHT ENFORCEMENT IN THE DIGITAL AGE 56 an g 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 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 4.2.3 The third question: Is fanfiction eligible for copyright exception and limitation? 100 4.3 CONCLUSION 106 CHAPTER 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 126 USING NORMS TO REGULATE ONLINE FANFICTION COMMUNITIES 126 D 6.1 METHODOLOGY 126 6.1.1 Content Analysis 126 ho 6.1.2 Corpus Linguistics 132 6.2 ETHICAL CONSIDERATIONS 145 RESULTS 146 cD 6.3 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 an 6.4 aN 6.3.1 DISCUSSION 201 Norm identification 201 6.4.2 Norm formation 203 6.4.3 Norm Enforcement 209 6.5 g 6.4.1 CONCLUSION 210 CHAPTER 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 LIST OF TABLES Table Overview of the research conducted by Casey Fiesler 18 Table Lists name of selected data sites and their policies 128 Table Copyright terms found in the research sites’ TOS Appendix Table List of data sites 141 Table 143 Table The list of chosen websites and the number of collected threads and tokens Top 50 keywords in Fandom corpus Table Collocations of plagiarism ordered by log-likelihood 160 Table Collocations of infringement ordered by log-likelihood 163 Table Collocations of legal ordered by log-likelihood 168 D Table 10 Collocations of illegal ordered by log-likelihood 158 170 173 Table 12 Collocations of fair ordered by log-likelihood 175 Table 13 Collocations of sued ordered by log-likelihood 177 aN cD ho Table 11 Collocations of permission ordered by log-likelihood Table 14 Collocations of disclaimer ordered by log-likelihood an Table 15 Collocations of patreon ordered by log-likelihood 180 186 g Table 16 Collocations of money ordered by log-likelihood 189 Table 17 Collocations of fanart ordered by log-likelihood 192 Table 18 Collocations of derivative ordered by log-likelihood 194 Table 19 Collocations of transformative ordered by log-likelihood 197 Table 20 The emergence of copyright regulations in online fanfiction communities 210 LIST OF FIGURE Figure The collocation of the word plagiarism 137 Figure Concordance lines of the word plagiarism 139 g an aN cD ho D ... TO COPYRIGHT ENFORCEMENT IN THE DIGITAL AGE 56 an g 3.1 CHALLENGES POSED BY THE INTERNET AND DIGITAL TECHNOLOGIES TO COPYRIGHT ENFORCEMENT 56 3.1.1 The impacts of the Internet and. .. CHAPTER 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... 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.”