Public open collaborative creation (POCC): A new archetype of authorship?

• Date: 01 March 2019
• Published date: 01 March 2019
• DOI: http://doi.org/10.1111/jwip.12116
• Author: Sunimal Mendis

59J World Intellect Prop. 2019;22:59–75. wileyonlinelibrary.com/journal/jwip

DOI: 10.1111/jwip.12116

ORIGINAL ARTICLE

Public open collaborative creation (POCC): A new

archetype of authorship?

Sunimal Mendis

School of Law, Sciences Po, Paris, France

Correspondence

Sunimal Mendis, 73 Epitamulla Road, Kotte,

Sri Lanka.

Email: sunimal.mendis@gmail.com

Funding information

European Research Council, Grant number:

616103

Public open collaborative creation (POCC) model constitutes

an important method of creating intellectual content within

the sphere of digital humanities. POCC is defined as creation

that takes place through the contributions of a multiplicity of

persons (contributors) under a model of sequential innova-

tion, resulting in the production of a literary, artistic, or

scientific work which remains in a continuous state of

change and development over an undefined period of time.

This article examines the POCC model in relation to three

creation projects that employ(ed) it for the production of

literary and artistic content. It argues that the use of the

POCC model has given rise to a new form of collaborative

authorship that is inclusive and dynamic and as such cannot

be adequately captured within the traditional notion of

collaborative authorship currently recognized by copyright

law. It concludes by outlining the need to revisit the existing

notion of collaborative authorship in copyright law in order

to enable it to accommodate the notion of POCC authorship.

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INTRODUCTION

The collaborative creation model enjoys a position of significance within mankind's cultural creation narrative. It is

embedded within our folkloric tradition of storytelling and is also visible in experimental and populist artistic

movements.

1

In a general sense, collaborative creation refers to a creation process within which a plurality of persons

engage in the production of intellectual or informational content by sharing and combining their creative and

informational resources, skills, and knowledge (Camarinha-Matos & Afsarmanesh, 2006, p. 3).

© 2018 The Authors. The Journal of World Intellectual Property © 2018 John Wiley & Sons Ltd

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MENDIS

M

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Within the existing copyright law framework with its individualistic focus and tendency to conceptualize the

author as a romantic solitary genius (Woodmansee & Jaszi, 1994, pp. 2–3),

2

the collaborative creation model has been

relegated to a position of secondary importance. Nevertheless, theadvent of the Internet and advancements in digital

technology have led to a re-assertion of collaborative creation as a dominant model in the production of cultural

content. In recent years, there has been an upsurge of creation projects that profit from the possibilities for remote

collaboration and networking afforded by this new technological infrastructure. Crowd-sourcing

3

, remixing and

mash-ups are examples of such new forms of collaborative creation. However, the question arises whether copyright

law, as the default legal regime that regulates legal entitlements over intellectual expression, is able to adequately

provide for these innovative forms of collaborative creation.

For a considerable period of time, the notion of authorship in copyright law has been subject to scrutiny on the

grounds that it fails to adequately recognize and provide for new forms of authorship that have emerged within the

digital humanities (Cooper, 2004, pp. 175–176).

4

In this article, I focus on the inability of copyright law's notion of

collaborative authorship to address a new form of collaborative creation that is gaining wide acceptance on digital

media which I refer to as “public open collaborative creation”(POCC). At present, the best known examples of the

POCC model are Wikipedia

5

and free open-source software (FOSS) creation projects such as VLC

6

and Debian

7

. I argue

that the POCC model gives rise to a new form of collaborative authorship that is inclusive and dynamic and as such,

cannot be adequately captured or expressed within the traditional notion of collaborative authorship recognized by

copyright law.

In part 2 of the article, I define the POCC model and describe it in relation to three creation projects that

employ(ed) it for the production of literary and artistic content. In part 3, I construct a notion of POCC authorship and

in part 4, I examine the extent to which the existing notion of collaborative authorship in copyright law is able to

capture and accommodate the notion of POCC authorship. In part 5, I attempt to identify the main points of

divergence between these two notions of authorship. The objective of this article is to present POCC authorship as a

new archetype of authorship that cannot be adequately captured within the existing notion of collaborative

authorship in copyright law. It also engages in a brief exploration as to the possibility of revising the existing exclusivity

based conceptual framework of copyright law in order to enable it to accommodate this new archetype of authorship.

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THE POCC MODEL

I define POCC as creation taking place through the contributions of a multiplicity of persons (contributors) under a

model of sequential innovation and resulting in the production of a literary, artistic or scientific work which remains in

a continuous state of change and development over an undefined period of time. As per the structure of this model, a

plurality of authors engage in the creation of a common work by modifying and building upon expression contributed

by each other along a process of sequential innovation that takes place within an open-ended timespan.

The term “work”is used in the context of copyright law to denote that the POCC process usually culminates in the

production of intellectual content that would qualify for copyright protection.

8

The openness of the model, which will

be elaborated in more detail below, signifies that the creation process is open to participation by members of the

public, as opposed to being limited to members of a closed group of persons.

It is noted that, the POCC model closely corresponds to von Hippel's model of “open collaborative innovation”

(OCI) that has been defined as development projects in which multiple users collaborate and contribute for free and

openly share what they develop.

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However, the fact that this concept has been formulated with reference to

innovation economics, and the vague terms in which it has defined, makes it unsuitable as a concept on which a legal

analysis could be founded. On the other hand, my definition of the POCC model is designed to deal specifically with

the production of creative content that will come within the framework of copyright law as opposed to innovations

taking place in the spheres of patent law or the law of industrial design. Therefore, it is possible to describe POCC as a

genus of the broader notion of OCI.

a

a

b