Tension Between Artistic Innovation and Intellectual Property Rights

We’ve been looking at mashups and convergence this week in ICM501, and Baharriat brought up an excellent point about the legality of shanghai-ing the original material for use within the mashups.

I’d like to talk for a bit about how wimpy I’ve become as an adult compared to the wild nature of my unfettered youth. It used to be that I really didn’t care about the intellectual property rights associated with different graphics and music available on the web. I just kind of went right on working until I got the inspired idea out in pixels for the world to see. Now, this was mid-1990’s so no one ever visited my excuses for websites, and there wasn’t exactly any kind of a social reaction to IP violations quite yet. Tasini vs. New York Times was still a precedent, which basically meant that as far as the U.S. Supreme Court was concerned, contracts regarding publication and republication rights were null and void when it came to reprinting or repurposing content for use on the web. Tasini didn’t last, however, and was later reversed as a precedent by some other case, if I’m recalling correctly.

Nowadays, I actually think twice about just grabbing things and working them. The internet has gotten a lot more civilized, and now that companies make their fortunes off of internet use and web-based marketing, the lawyers are watching the ‘net for copyright infringement. At least a little bit.

There’s still a sense of being able to get away with indiscriminate sourcing of original material for use in things like Mashups, usually tied to the idea that there’s so many folks out there using the Internet that true enforcement is absolutely impossible to regulate. And to a certain degree, this is true.

For myself now, however, I have to really consider where I stand on the use of access and violation of intellectual property rights. It doesn’t help that the legal industry is still struggling to catch up to the technological innovation of the internet and the web. Precedents are changing rapidly instead of settling out for long stretches of time as usually happens with case law. Jurisdiction is another issue, since the server which delivers the files requested might well lie outside of the country in which the web surfer is browsing.

I don’t know exactly what to think. As an artist myself, I feel that it’s simultaneously important for me to be able to work from inspiration regardless of source materials. As an artist, though, I would also be upset to find that someone had ripped off my work. An old college buddy of mine plagiarized one of my ideas for design homework. She got away with it, too, because although I raised a stink, the professor gave her credit for the homework anyway. I have to say that if it happened to me -now- the discussion would be taking place between the professor, the student, and the Dean of Students or the Student Disciplinary Board.

So I’m not sure how I feel. There’s got to be some kind of a change that’s going to happen in the realm of intellectual property laws, if only because in legal terms a law which is unenforceable is not considered to be a valid law, and it becomes almost impossible to regulate every aspect of the internet, if only because someone is working just as hard to create non-regulated workarounds, hacks, and pirated solutions.

I definitely think that this is something we need to consider carefully as future leaders of the interactive communications field. Whether we weigh in on the side of the legal precedents and rendering unto Michelangelo what is Michelangelo’s, or we opt for the free-for-all aspect of the earlier internet culture, we’re going to have to live with the consequences of one or the other, until someone finds a way to satisfy both.

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