Title: "Recoding" Intellectual Property and Overlooked Audience Inerests
Abstract: Intellectual property is traditionally justified as an ex ante incentive structure to produce social wealth by promot[ing] Progress of Science and useful Arts.1 It has also been observed that intellectual property can be a means to protect or of individual creators.2 A person may view her intellectual creations as a statement or manifestation of her spirit, creativity, and identity. This personality naturally leads to concern that laws protect integrity of, and creator's prerogatives over, intellectual products. In this vein, personhood proponents should occupy vanguard of moral for authors3 and publicity rights for celebrity performers.4 In last few years, this generally pro-property personhood theory has been met with a scholarly reply specific to intellectual property: that owners' rights to control their intellectual property are really rights about who controls social meaning. For example, one commentator has noted that disputes over unauthorized uses of copyrighted photographs tend to reduce to one question: At what point, courts must decide, does a change in context or use transform an image's meaning?5 For this deconstructionist perspective,6 changes in meaning are welcome and property rights should be limited to give non-owners greater breadth to shape their own messages and, thereby, increase personhood benefits that intellectual creations brings to those non-owners. In other words, true solicitude for personal development calls for weakening some of barriers created by intellectual property. Along these lines it is argued that authors need greater latitude to quote existing texts, that performing artists need more liberty to interpret theatrical works, that minority need greater liberty to manipulate or existing cultural symbols like celebrity images, and that Internet opens up a bold new world in which author and work-cornerstones of copyright theory-lose their very meaning.7 This demarche against intellectual property is informed by, and forms part of, a critical zeitgeist in which legal institutions which were widely taken to be neutral are scrutinized for bias against disenfranchised or less enfranchised groups. But this critique of intellectual property is more than just application of current intellectual fashions to a set of well-known legal doctrines-it is more precisely because critique comes at a time when legal devices are themselves in vogue. There is no question that intellectual property is a hot practice area, that United States sees extension and stabilization of intellectual property rights as one its main goals in international commerce, and that property notions are being applied-implicitly and explicitly-to a wider variety of social issues. Property law language now appears even in First Amendment jurisprudence.8 When grappling with problems like welfare reform or immigration, people in late 1990s speak less of interest groups and more of stakeholders,9 as though everyone who has an in a problem is a settler on Western frontier. Although this makes deconstructionist critique timely, it does not make it correct or even complete. Long before Foucault, Montaigne offered first conceptual step in this argument when he observed that the word is half his that speaks and half his that hears it.10 If word is so shared, why should speaker-the original artist, composer, or author-have such powerful control over word's fate? The deconstructionist would liberate word from speaker's control and give everyone more to recode intellectual property. The problem with deconstructionist argument for recoding freedom is that it does not consider recipient of a cultural image as a listener. It focuses on recipient as a new speaker-or a secondary user-someone who will utter cultural object again for her own act of communication. …
Publication Year: 1999
Publication Date: 1999-03-01
Language: en
Type: article
Access and Citation
Cited By Count: 30
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot