Johann Gottlieb Fichte, and The Trap of Inhalt (Content) and Form: An Information Perspective on Music Copyright

Information, Communication & Society, Volume 12, Issue 2, pp. 41-64

31 Pages Posted: 22 May 2012

Date Written: February 1, 2009

Abstract

In the digital environment, copyright law has become trapped in an assessment of what has been taken, rather than what has been done with copied materials and elements. This expands the scope of copyright into areas where it should not find infringement (such as sampling, mash-ups and other transformative uses) while encouraging activities that are problematic (such as hiding sources). This article argues that the trap was laid by the German idealist philosopher Johann Gottlieb Fichte whose influential 1793 article Proof of the Unlawfulness of Reprinting for the first time distinguishes Inhalt (i.e. content free to all) and Form (i.e. the author’s inalienable expression) as copyright categories. It is shown that Fichte’s structure conflates norms of communication and norms of transaction. An alternative path for copyright law in an information society is sketched from a separation of these norms: copying should be assessed from (i) the attribution of sources, and (ii) the degree to which original and derivative materials compete with each other. Throughout the article, transformative practices in music set the scene.

Keywords: copyright, idea-expression dichotomy, Johann Gottlieb Fichte, musical work, performance, adaptation, sampling

JEL Classification: O34, K11

Suggested Citation

Kawohl, Friedemann and Kretschmer, Martin, Johann Gottlieb Fichte, and The Trap of Inhalt (Content) and Form: An Information Perspective on Music Copyright (February 1, 2009). Information, Communication & Society, Volume 12, Issue 2, pp. 41-64 . Available at SSRN: https://ssrn.com/abstract=2063816

Friedemann Kawohl

Independent ( email )

No Address Available
United States

Martin Kretschmer (Contact Author)

University of Glasgow ( email )

10 The Square
Glasgow, G12 8QQ
United Kingdom

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