CROSSROADS IN CULTURAL STUDIES

CROSSROADS IN CULTURAL STUDIES
Fourth International Conference
June 29 - July 2, 2002, Tampere, Finland

Author ©: Intellectual Property and Contemporary Authorship

Organiser: Alana Lowe-Petraske

Author ©: Intellectual Property and Contemporary Authorship I

Kawohl, Friedemann (Bournemouth University, United Kingdom) COMPARING PARADIGM SHIFTS IN INTELLECTUAL PROPERTY: MUSIC COPYRIGHT AROUND 1800 AND AROUND 2000
On July 19th 1793, the French National Assembly replaced with a single stroke the old system of publishers' rights with a new system of authors' rights. The Assembly of the German Länder agreed in 1837 upon a common minimum protection for authors' rights. What had happened in Paris as an act of revolutionary enthusiasm, was in Germany carefully prepared with discussions in Frankfurt; but in both cases it was a change of paradigm. The basic assumptions of the old system were incompatible with those of the new: Protection of publishers v. protection of authors, term limitation from the date of publication v. limitation from the author's death, protection of physical, printed works v. protection of abstract works. During the two centuries since, the Authors' Rights paradigm has expanded (and infiltrated the copyright approach of the Common Law countries). New forms of using works fell within the scope of protection, the term of protection has been extended up to 70 years post mortem auctoris, and nearly all countries in the world have now signed up to similar systems of protection. However, since the late 1980s there are again signs that a fundamental shift in the principles underlying protection may be imminent. First was the issue of protecting computer software under copyright. From the mid-1990s, data exchange via the Internet set a new "digital agenda" that continues into the latest discussions about Napster and Gnutella. Around 1800, as today, economic and technological trends stretched the basic legal assumptions. Copperplate and printed music became cheaper by new printing processes, today by digitalization. Distribution became cheaper by new custom unions on the continent, today by the Internet. Yet, these technological and economic developments are not sufficient to explain the paradigm change around 1800. Independent of copyright practice and economic arguments a paradigm change will be prepared and facilitated through aesthetic changes and through discussion in the philosophy of law. In this paper, I shall examine the philosophical and aesthetic developments underlying the paradigm changes in the protection of products of the mind as intellectual property both that occurred 200 years ago and that is occurring today.

Barron, Anne (London School of Economics, UK) OWNING THE IMAGE: THE GENUS AND THE COPYRIGHT Copyright law in the UK has a peculiar relationship with visual culture. By comparison with literary or musical expressions, which it protects generously and without discrimination, the sphere of visual representations is regulated by the law of copyright in a highly selective manner. The criteria of selection, however, are difficult to fathom. In order to be protected by copyright law, an object of visual perception must fit within the category of artistic works’. Yet the distinction enforced by this category is not so much one between high (art) and low (popular culture) as a distinction between different kinds of cultural form. On the one hand, a visual work - as a matter of law - can be artistic despite the fact that it lacks artistic quality. On the other hand, the list of legally recognised ‘artistic works’ is tightly defined and closed, such that it effectively though without ever explicitly resorting to a criterion of aesthetic merit - privileges certain genres of visual art over others. It will be argued here there are affinities between the way UK copyright law defines artistic works for the purpose of identifying these as possible objects of a property right, and the way Modernist art theory and criticism defines the art work for the purpose of identifying its aesthetic limits and possibilities. Both assume that an ‘artistic work’ is radically distinct from an ordinary object of visual perception; that all ‘artistic’ products can be confined within a closed list of mutually exclusive genres; and that norms for each of these genres (whether aesthetic or proprietary) can somehow be derived from the self-contained technical conditions and demands of their production. This paper will explore these parallels between copyright doctrine and Modernist aesthetics, and identify similarities between the contradictions that have plagued both discourses, albeit for very different reasons.

Woodmansee, Martha (Case Western Reserve University, USA) THE GLOBAL REACHES OF AUTHORSHIP
'Authorship' matters. The figure for the process of culture-making that emerged as dominant in early nineteenth-century European literary discourse has cast a long forward shadow. Today, perhaps more than ever before, it has practical implications for the way in which benefits and burdens are distributed in the real world. In this paper Peter Jaszi and I examine one group of implications: in the post-colonial era "authorship" operates as a key conceptual mechanism by which the nations of the industrial North maintain economic and cultural hegemony over information flows, and by which the claims of the peoples of the South are marginalized or denied. Building on our previous collaborative work, we try in the paper to call attention to the inequitable way in which the law operates to allocate "intellectual property" rights, suggest the connection between this form of distributional injustice and the "authorship" construct, and explore alternative ways of thinking and talking about cultural production that could provide the foundation of a different legal order.

Macmillan, Fiona (Birbeck College, University of London, United Kingdom) COPYRIGHT'S COMMODIFICATION OF CREATIVITY
This paper will consider how the concepts of authorship and ownership in copyright law have contributed to copyright's commodification of creativity. The paper will argue that this commodification has facilitated the build up of concentrations of private/corporate power over cultural products. Consequences of the exercise of this power include cultural filtering, the homogenisation of cultural output, and the destruction of the dialogical relationship between the individual and society. Ultimately, the effect of commodification may be to destroy the very cultural development rationale upon which copyright depends.

Mohrbacher, Carol (Iowa State University, USA) MICKEY MOUSE, THE LAW, AND THE ACADEMY: DEFINING AUTHORSHIP
A vigorous debate between businesses like Disney Corp., academic groups like American Association of University professors, and legislators preceded the passage of the 1998 20-year Copyright Term Extension Act in the United States. Understanding how each of these three communities (business, the legislature, and the academy) define authorship can help us understand why the 20-year term extension passed, despite the protests of academic groups. In this paper I trace historical definitions of the author and I maintain that authorship can be defined in terms of its constituent elements, creativity and originality, and that the academyís definitions diverges from those of business and the law. Perhaps understanding divergences in definitions of authorship can give us a clearer picture of the intellectual property landscape and can also provide clues to the future of digital copyright.

Lury, Celia (Glodsmith's College, London, United Kingdom) PORTRAIT OF THE ARTIST AS A BRAND
"I think I've got phenomenal ability to base very important decisions totally on emotion. If it feels right, 100 per cent, I don't ask myself why. If I did ask myself why, I wouldn't be able to find out the answers, and I think that's why a lot of people get stuck. If it feels right, I just do it." (Hirst, quoted in Leith, 1999) "If I find out that what I've been doing isn't art," he tells me, "I don't really care". (Hirst, quoted in Leith, 1999) "Becoming a brand name is an important part of life," says Mr. Hirst. "It's the world we live in." (The Economist, February 10, 2001) In these statements, the artist Damien Hirst proclaims that he just does it, that what he does might not be art, and that he does not really care whether it is or not. More than this, Hirst says that he is a brand name, and thus implies that what he does should be protected by the laws of trademark as much as, or rather than, by those of copyright, conventionally the recourse of artists who seek to protect property rights in their work. This paper will consider how the name Hirst may indeed operate as a brand, locating his practice in relation to what Rosalind Krauss calls the post-medium condition and exploring shifts in legal interpretations of contemporary intellectual property law that might support such a claim.

Taroff, Kurt (Cuny Graduate Centre, USA) DEFINING LEGAL OWNERSHIP IN THEATRICAL WORK
In recent years the question of ownership of collaborative work in the theatre has repeatedly surfaced in the United States court system. This paper examines several recent cases that have been tremendously important in shaping and defining the legal view of ownership in the theatre. The issues include questions of group authorship and, most notably, the recent Rent tria' in which a dramaturg sued for authorship rights in the landmark rock opera. While the collaborative nature of theatre has made ownership of the text difficult to define, theatreís ephemeral nature has begged the question of what rights, if any, a director may have over his or her work. The final section of the paper presents a model for a director to claim copyright on a production. Ultimately, we find that the courts must make a very difficult compromise between the vagaries and demands of art, and the need for a clear and well-defined body of law.

Peacock, Alan (University of Hertforshire, United Kingdom) AN AESTHETICS OF THE INTERACTIVE?
Interactivity is an increasingly important site of much cultural activity, and while clearly new and nove' the extent to which it is a radical departure departure from previous media forms is contested. Some commentators (Manevic, for example) seeing it as a kind of extended cinema. This paper proposes that there can be said to be a separately identifiable aesthetics of interactivity, an aesthetics that can be discussed, and can result in informed debate about the nature of the work and its relationship with its broader cultural contexts. This proposal is a continuation of work previously published elsewhere (Convergence, Spring 2000, Vol 6 No 1 ISBN 1 86020 056 7, and Digital Creativity, Vol 12 No 4 ISSN 1462 - 6268), and will extend the idea of domains of interactivity previously discussed. The presentation of the paper will include critical discussion of selected interactive artefacts.