Stabilizing and Contesting the Instable Through Discourse: Attributions of Imitation and Innovation in the Digital Games Sector

Abstract

Copyright is commonly seen as an internally stable system that is contested through external triggers (eg. digitization). This view overlooks that its very concepts and norms embody successful narratives about the process of cultural creation and its relevant actors and problems (Mayer-Schönberger). Empirical studies show that constitutive concepts like the author or work are historically and conceptually far from being stable (Rose, Woodmansee). Also, the adaptation and enforcement of legal rules are heavily dependent upon congruent discourses and informal norms. Consequently, copyright can be seen as notoriously “leaky” (Silbey) and instable – with discourses, norms, practices and technologies stabilizing or contesting the already instable.

From an empirical point of view, copyright law is only one of many modes of ordering the production, dissemination and usage of cultural goods. Especially research on “low-level IP-Regimes” (Sprigman, Raustiala, Schultz) like comedy, cuisine and fashion has shown that leaky legal protection does not necessarily lead to market failures. Our empirical approach therefore investigates the multiple ways and dimensions in which claims on intellectual property are being articulated, practised and contested.

The empirical case in this proposal is the digital games industry that constitutes a vibrant and profitable market despite a low legal protection of its creative practises. Discourses within the industry delineating legitimate inspiration and illegitimate plagiarism thus pose an auspicious starting point for empirical research on norms in cultural production. Two complementary discourse analyses on cases of alleged plagiarism address how phenomena of imitation and innovation in the games industry are discursively constituted and shaped. Interestingly, the findings suggest that the discursive dealings with the instability of copyright law yield several informal norms that are mostly congruent with actual legal norms.

As such, the proposal sheds empirical light on how the notion of “intellectual property” is stabilized through discourse against the background of legal instabilities.

Keywords: copyright, games industry, discourses, regulation, governance, digital games, games, innovation, imitation