Center for Interdisziplinary Research

ZiF Research Group Workshop

Opening Conference: Towards an Ethics of Copying

Convenors: Reinold Schmücker (Münster, GER), Thomas Dreier (Karlsruhe, GER), Pavel Zahrádka (Olomouc, CZE)

Date: 6 - 9 October 2015

The ethics of copying is a domain-specific set of (arguable) normative rules and convictions based on widely held moral intuitions and beliefs concerning the necessary or desirable regulation of acts of copying. The opening conference of the ZiF research group dedicated to this topic brought together an impressive range of relevant approaches from several disciplinary, methodological and cultural backgrounds.

Reinold Schmücker suggested a number of medium range principles, based on the principle of a "fair and impartial balance between the interests of authors, exploiters, users or consumers, people who potentially copy works, and the general public". According to Wendy Gordon, we have to acknowledge an obligation not to copy certain things insofar as we have to respect others the way we want to be respected ourselves. Material claims ought to be construed basically in analogy to the principles of tort law: Pay back for whatever benefits you have received, compensate any harm you may have inflicted or damages you have caused. Amrei Bahr set out to establish two genuine, universally applicable moral rights of artefact creators, namely the right to prevent the production of feigned exemplars and the right to prevent the production of unauthorized distribution copies.

The overall tendency of most contributions favored inductive approaches and explorative attempts to better understand some of the conflicts that frequently arise around copying practices and between copying practices and existing legal norms, rather than attempts to deduce general rules from fundamental principles of moral philosophy. Even if no eternal ethical values and rules may be ascertained, it is still possible, as Thomas Dreier suggested, to describe, explain and test the ethical rules followed and the ethical decisions taken at a particular time and under particular circumstances as regards their effects and capacity to solve the particular problems to which the regulation regarding the activities of copying and making reproductions was accepted, in its time, as the appropriate answer.

Wolfgang Ullrich described an "ethos of copying" in the widespread practice of reblogging images, which changes profoundly our attitudes towards individual works and to the possible achievements artists might strive for. In copying an image, Ullrich claimed, an inspiration becomes manifest: a state of being inspired by something that seems to want to be copied and shared. An ethics of copying should recognize this ethos and bid farewell to the myths of solitary authorship which no longer encourage the creation of truly innovative works. In a similar vein, Alain Strowel contrasted the role of originality as a legal requirement for protection in European copyright law with a view to the social facts of widespread imitation practices and the emerging technologies that empower individuals to make copies easily and to make them widely available. In order to reduce conflicts between legal norms and actual practices, he suggested that only cases where a protected work is used without permission "as a work" (and not merely as material for some other purpose) should count as infringement, discarding large areas of existing law that also protect smaller parts or aspects of protected works. According to this suggestion, however, the reblogging of entire photographs, which Ullrich wanted to exempt from copyright liability because it is considered an innocent gesture of pointing towards something, would still be an infringement.

Pavel Zahrádka presented results from an empirical study of media-related practices, motivations for, and normative attitudes towards file sharing and downloading videos and music among Czech audiences. He found shared social norms and moral intuitions concerning the downloading practices that differ from existing legal regulations, but nevertheless ought to be conceived as ethical. This assessment was supported by Balázs Bodó who investigated illegal file-sharing networks and found communities that maintain a common resource pool and have established sophisticated rules to avoid the "tragedy of the commons".

Lionel Bently focused on recent adjustments concerning the quotation defense in British copyright law – a progress, but not going far enough. Would a more flexible "fair use" exception, as it is established in US copyright law but unknown to European statutes, help to solve some of the problems with these restrictive conditions of legitimate quotation, or would it result in new problems of uncertainty? Annette Gilbert discussed some examples of "conceptual" or "appropriation literature", consisting largely (or completely) of quotations. What might be an adequate reading of books like "Getting Inside Jack Kerouac's Head"? A reading that pays attention to the question what the work of authorship might be that the reader actually has in her hands, given that it is to be distinguished from the work which it so closely resembles.

Maria Reicher-Marek analysed the work concept underlying (German) copyright law. She found the ontology implicit in this law largely consistent, although in some respects in need of clarification, in particular with regard to the assumption that works are somehow mental objects. She suggested, furthermore, that copyright law might benefit from a more sophisticated mereology of works. Whereas Reicher-Marek considered fictional characters as one kind of parts of works that an adequate mereology should distinguish from other kinds of parts, James O. Young argued that characters can neither be conceived as works of authorship nor as integral parts of works of authorship. We should understand them rather as tools that are used in producing certain kinds of works. Fictional characters should not be granted copyright protection at all, nor should it be possible to enlist them for trademark protection.

Lisa Jones reviewed various types of appropriation for artistic or commercial purposes, pointing out significant differences and focusing on criteria for what makes certain ways of doing things with previously existing works "aesthetically destructive". Works of art are vulnerable insofar as the experience of a given work can be despoiled or diluted by the way it is used in a particular context. Therefore we might want to have rules that protect at least certain works against particularly detrimental kinds of use. But our interest in the freedom of expression and also in the freedom to satirise or ridicule given works will limit the conservationist desire for such protections.

Kathy Bowrey, pointed to a deep ambivalence of current discussions about preservation, copying and access to the archives in the post-colonial situation: "Despite an avowed commitment to redress the problem of institutional domination over Indigenous lives, it is easy to replicate the teleology of the copy in ethical practices that seek to redress historic injustice, indeed to effect an ongoing colonialism under the guise of ethical practice." The contemporary Chinese shanzhai counterfeit culture deserves attention in this respect. Barton Beebe argued that intellectual property law in this context assumes part of the function that sumptuary law served in many premodern societies. The topic was taken up again with the film "Double Happiness" by the Taiwan-based Austrian film director Ella Raidel, a documentary about the copy of the Austrian town of Hallstatt that was recently built at the shore of a lake in Huizhou, a boomtown in the Guangdong province of Southern China.


Eric Achermann (Münster, GER), Andrew Akampurira (Kampala, UGA), Amrei Bahr (Münster, GER), Barton Beebe (New York, USA), Lionel Bently (Cambridge, GBR), Balázs Bodó (Amsterdam, NED), Eike Bohlken (Hamburg, GER), Kathy Bowrey (Sydney, AUS), Massimiliano Carrara (Padua, ITA), Daniel Cohnitz (Tartu, EST), Bernadette Collenberg-Plotnikov (Münster, GER), Randall Dipert (Buffalo, USA), Marc Ernst (Bielefeld, GER), Ursula Frohne (Münster, GER), Annette Gilbert (Berlin, GER), Wendy J. Gordon (Boston, USA), Volker Grassmuck (Lüneburg, GER), Johannes Grave (Bielefeld, GER), Ralf Grötker (Berlin, GER), Oliver Hallich (Essen, GER), Darren Hudson Hick (Lubbock, USA), Matthias Hoesch (Münster, GER), Martin Hoffmann (Hamburg, GER), Wybo Houkes (Eindhoven, NED), Lisa Jones (St Andrews, GBR), Paul Klimpel (Berlin, GER), Michael Kühler (Bielefeld, GER), Bärbel Küster (Berlin, GER), Sebastian Laukötter (Düsseldorf, GER), Harry Lehmann (Berlin, GER), Manuela Lenzen (Bielefeld, GER), Fulvio Longato (Triest, ITA), Johann Marek (Graz, AUT), Cornelis Menke (Bielefeld, GER), Nicola Mößner (Greifswald, GER), Vincent C. Müller (Pylaia-Thessaloniki, GRE), Johannes Müller-Salo (Münster, GER), Norbert Niclauss (Berlin, GER), Hans Nieswandt (Bochum, GER), Melanie Obraz (Osnabrück, GER), Eberhard Ortland (Bielefeld, GER), Constanze Peres (Dresden, GER), Grischka Petri (Bonn, GER), Alexander Peukert (Frankfurt am Main, GER), Antonia Putzger (Berlin, GER), Ella Raidel (Taipei, TPE), Jonas Rees (Bielefeld, GER), Maria Elisabeth Reicher-Marek (Aachen, GER), Marc Schalenberg (Berlin, GER), Matthias Schmid (Berlin, GER), Peter Schneck (Osnabrück, GER), Aram Sinnreich (Washington, USA), Karina Smigla-Bobinski (München, GER), Jaime Stapleton (Kopenhagen, DEN), Henry Steinhau (Berlin, GER), Ralf Stoecker (Bielefeld, GER), Alain Strowel (Brüssel, BEL), Stina Teilmann-Lock (Kolding, DEN), Wolfgang Ullrich (Karlsruhe, GER), Almut von Wedelstaedt (Bielefeld, GER), Zhuofei Wang (Kassel, GER), Michael Weh (Hamburg, GER), James O. Young (Victoria, CAN), Véronique Zanetti (Bielefeld, GER), Martin Zeilinger (Cambridge, GBR)

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