Online Re-creation Culture in the 21st Century: the Reconciliation between Copyright Holders, Online Re-creators and the Public Interest

Abstract

In the online culture of the 21st century, people worldwide re-create and disseminate works by using existing works. Facilitated by the Internet and digital technologies, ―online re-creations‖ have become much more common, more widespread, and more sophisticated than ever before. Online re-creations are new works created based on pre-existing copyright protected materials: they are for instance fan fiction, parody, mash-up, fanvid, machinima and virtual world. Due to the difficulties to obtain authorisation from right owners of the original works, online re-creations are potentially infringing the rights of copyright holders. Infringements are usually assumed to occur despite the uncertain legal status and the various nature of online re-creation. Nevertheless copyright and online re-creations are both essential. Re-creations and their online culture are beneficial to individuals and the society at large due to the three principles i.e. creativity, freedom of speech and the public interest. This thesis finds that copyright law that should encourage creative expressions has restrained and discouraged creative re-creations. Besides, the existing copyright exceptions are insufficient and ineffective to safeguard the rights of the re-creators and the interest of the public in accessing and reworking from copyright protected works. It is therefore vital to reconcile the conflicting interests: the exclusive rights of the copyright owners, the rights of re-creators and the interest of the public. To achieve a fair and reasonable balance between the conflicting rights and interests, this thesis proposes that everyone should have a right to use existing works in making creative re-use of such works without infringing copyright. The ―right to re-create‖ will be granted to the person whose re-creation meets all specified criteria