Intellectual Property and Access to Im/material Goods

Intellectual Property and Access to Im/material Goods

Elgar Law, Technology and Society series

Edited by Jessica C. Lai and Antoinette Maget Dominicé

Traditionally, in order to be protected intellectual property goods have almost always needed to be embodied or materialised (and – to a certain extent – to be used and enjoyed), regardless of whether they were copyrighted works, patented inventions or trademarks. This book examines the relationship between intellectual property and its physical embodiments and materialisations, with a focus on the issue of access and the challenges of new technologies. Expert contributors explore how these problems can re-shape our theoretical notion of the intangible and the tangible and how this can have serious consequences for access to intellectual property goods.

Chapter 2: Copyright and the new materialism

Dan L. Burk

Subjects: innovation and technology, intellectual property, law - academic, cultural heritage and art law, intellectual property law

Abstract

During the past several years, an increasing number of scholars in a variety of fields have begun to re-emphasise the centrality of matter in their exploration of the world. This “new materialism” seems in part a reaction to the “discursive turn” during the latter years of the twentieth century which over-emphasised the cultural and semiotic dimensions in our understanding of the universe. Drawing on multiple theorists from Deleuze to Latour, scholars in disciplines across the humanities and social sciences have begun rejecting the physical dualisms that pervade even postmodern analyses, in order to develop a coherent understanding of observed phenomena. This approach has become particularly important in the area of “digital humanities”, where the digitisation of traditional expressive forms, or the development of new digital expressive forms, fundamentally implicates the connectivity of the virtual and the material. Copyright has long rested upon a series of dualistic doctrinal structures, including the fundamental dichotomy between the immaterial “work” and its fixation in a physical “copy.” This distinction, which was never entirely coherent even in traditional media, has broken down in the face of digital instantiations of creativity. The disconnection between legal doctrine and new media has now resulted in decades of incomprehensible decisions regarding the fixation of works in computer circuitry or the transmission of works across telecommunications media, particularly the internet. New materialism might offer copyright a path out of such unsustainable distinctions, by providing a viewpoint that traverses the artificial opposition of work and copy, recognising the primacy of matter in the development of creative expression.

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