Copyright’s Imperfect Republic and the Artistic Commonwealth
COPYRIGHT AND PIRACY: AN INTER-DISCIPLINARY CRITIQUE, L. Bently, J. Davis, J. Ginsburg, eds., Cambridge University Press, 2010
Queen Mary School of Law Legal Studies Research Paper No. 56/2010
8 Pages Posted: 3 Jun 2010
Date Written: June 3, 2010
Abstract
This chapter comments on D McClean's "Piracy and Authorship in Contemporary Art and the Artistic Commonwealth" (Copyright & Piracy, eds Bently et al, CUP, 2010, ch 16). In that chapter, McClean considers the norms of authorship and infringement in the culture of "high" art. He suggests that this culture – even in its postmodern variants – is shaped by a predominant concern with unique artefacts and obeys norms that differ significantly from those underpinning copyright law. He explains that, as a result, artists are obliged to employ mechanisms outside copyright law to secure their interests and that copyright infringement proceedings involving "high" artists sometimes fail to recognise the conventions of the "artistic commonwealth". In response to McClean, it is argued here that, while copyright law has certainly adopted a model that generally identifies intangible essence rather than material artefact as its object of regulation, this model is far from complete. Copyright continues to display features capable of securing interests in material cultural forms and, to some extent, remains open to alternative norms (particularly to norms deriving from the cultural practices that it regulates).
However, the law's "aesthetic neutrality", it is argued, present a much more significant impediment to the recognition of the autonomy of the "artistic commonwealth" in copyright law.
Keywords: copyright, art, contemporary art, works, artistic works, sculpture, aesthetic neutrality, intangibility, infringement, fair dealing, fair use
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