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Accepted Paper:

The challenge of artistic freedom through practices of uncommoning: intellectual property law, business, and creativity  
Ute Röschenthaler (JGU Mainz)

Paper short abstract:

With growing global interaction and artistic creativity, intellectual property law, based on national legislation, remains of limited benefit for many social actors. The paper discusses the impact of uncommoning that encourages legal uncertainty but also innovative practices despite obstacles.

Paper long abstract:

Imitation is often at the beginning of creativity and innovation, especially when creativity is considered a practice of commoning through which social actors provide for their products’ collective consumption and use. From a legal point of view, however, the resulting work is considered either the exclusive property of a creator, or this individual is accused of having committed theft of someone else’s intellectual property. This process of uncommoning, also called judicialisation, is justified by the classical assumption that its legal proprietors have invested time, energy and means in their creation and remuneration will be an incentive for further creativity. It ignores that all creations are based on existing work.

In this paper I argue that the daily practices of local actors are more complex than the legal regulations provide for. Rather than building on the binary of law and free creative activity, or otherwise, structural constraints versus individual agency, I understand what happens here as the social interaction of various competing stakeholders involved in an arena of interests. Some stakeholders pursue their interests more successfully than others and even influence law makers, some lose, while others creatively appropriate regulations to invent new genres or find their own more flexible ways of managing their projects. This paper draws from ethnographic research on intellectual property in Sino-Malian private business cooperation, and more recently on music in Nigeria, and African activities in Asian countries at the interface of mutual trust, inspiration, and cooperation in spaces beyond the immediate focus of intellectual property law.

Panel P120a
Legal Worlds; Worlding Law
  Session 1 Tuesday 26 July, 2022, -