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Session #7: Sunday, 11 January, 12.15 - 14.00 (CSLG)
Panel coordinator(s): Brenna Bhandar (Kent University, UK) and Dwijen Rangnekar (Warwick University, UK) (b.bhandar@kent.ac.uk/d.rangnekar@warwick.ac.uk)
Chair/discussant: Rosemary Coombe, Canada Research Chair in Law, Communication and Culture Faculty of Arts and Faculty of Graduate Studies York University (rcoombe@yorku.ca)
Panel description
Panelists, paper titles, and abstracts
The panel seeks to unpack and disturb various readings (and writings) concerning intellectual property. In the process it focuses on that persistent contradiction within intellectual property law – the struggle between myths of creativity and originality and rhetorics of theft and progress. The panel also acknowledges the ‘exclusionary’ effects and impacts of intellectual property. In addition to the exclusionary effects that the borders of a property right generate, the law also excludes various forms of creativity by recognising and privileging only particular arenas and acts of creativity. Another set of contradictions emerge with the very nature of biotechnological innovation itself, which challenges distinctions between the natural and the made, between the categories of human and non-human. These distinctions, well entrenched in regimes of property ownership and patent law, are now being taken apart and challenged by the very substance of biotechnological objects. The role (and ability) of the law to draw bright line distinctions in this arena raises further issues of enquiry.
This paper raises a series of questions on the representational problem of the pirate in the contemporary discourse on law, public good and creativity. Piracy produces a series of anxieties: from states, transnational capital, and media industries and even in some liberal proponents of the public domain. Piracy seems to allegorize an impure transgression, tainted by commerce and an inability to produce a discourse on itself. Pirate production of commodities and media objects fits neither a narrative of resistance nor normative critique, nor does piracy seem to fit received models of creativity or innovation. The efflorescence of non-legal media production and circulation exists as a series of publicly articulated facts, constantly referred to in media panics, national security discourses, and everyday conversations. I shall discuss the problem of the pirate through enquires ranging from assumptions about creativity, subjectivity and transformation, commodification and social life.
Copyright is in essence the right to communicate certain types of information that has reproduction value. Subject matter, scope, and duration of intellectual property rights over music has been receiving attention for quite some time, especially from the vanguards of the music industry. The central issue in the debate has been the law’s division of rights between producers, distributors, and consumers of music. While the issue has never been kept on the backburner since the eighteenth century when professional composers brought litigation against music publishers for grant of copyright to them, periodic expansion of the subject matter, scope or duration of rights under copyright represents outcomes of specific legal and political contests in which the interests of those seeking to broaden copyright generally have prevailed. The ‘justificatory rhetoric’ for defending or expanding copyright could do it this time too in cases involving online music. First part of the paper focuses on the stakeholders, i.e. who gained and lost from the law’s expansion resulting from changes in materialist circumstances.
One of the important factors that had long driven copyright is the technological change, with each one adding supporters within the maniacs and phobics. One may note however, mere copying cannot result in any significant trespassorary significance; distribution of the copies is one of the necessary conditions for such violation. The hierarchical mass communication technologies like radio and television, due to both physical and economic limitations, prevent any average recipient to redistribute the work in a manner that can compete with the original. Even among the decentralised technologies, the narrowcast ones like email do not provide any viable threat to the right holder. However, a broadcasting one like the Internet has the potential to do so, as recent experience suggests. Second part of the paper analyses the arguments in the cases involving music copyright over Internet.
The acronym peer-to-peer or P2P that depicts the controversial technology used in the present cases, is a complete misnomer: a friend, a colleague, a hostel-mate or even a co-member of an internet group set up for any purpose can be considered as a peer, but certainly not an anonymous person whose computer one is accessing just for the purposes of getting a media file. Certainly no ‘public purpose’ is served by this particular technology. On the other hand, the technology in question has all the potential for creating a ‘common’ in the Lockean sense, from which appropriation by one will not diminish anything in any significant manner even in the absence of prescriptive laws. Creating such a common is all the more important for those musicians who are yet to find favour with a willing company; this is more true for all those who find their compositions in the music of someone more established, years later. While technologies like audio-streaming and pay-per-stream are already in place, with some being offered by established companies, the paper argues that a Collective Rights Management will result in higher welfare by providing a near-perfect competitive setup where the market alone will decide the worth of one’s labour rather than providing opportunities for rent-seeking by the ones who exploit other’s labour.