Striking a Balance between Property and Personality: The Case of the Avatars

Norberto Nuno Gomes de Andrade

Abstract

Virtual worlds, as powerful social platforms of intense human interaction, gather millions of users worldwide, producing massive economies of their own, giving rise to the birth of complex social relationships and the formation of virtual communities. By enabling the creativity of the player and figuring as an outstanding example of new online collaborative environments, virtual worlds emerge as context for creation, allowing for users to undertake a digital alter-ego and become artists, creators and authors. Nevertheless, such digital egos are not merely creations, but a reflex of their creators, an extension of their personalities and indicia of their identities. As a result, this paper perceives the avatar not only as a property item (avatar as the player’s or [game-developer’s] property) but also, and simultaneously, as a reflex of our personality and identity (avatar as the projection of one self in the virtual domain, as part of an individual persona). Bearing in mind such hybrid configuration, and looking at the disputes over property rights in virtual words, this essay makes three fundamental arguments.

Firstly, it proposes a re-interpretation of intellectual property rights (namely of copyright law) according to its underlying utilitarian principles, as such principles seem to have been forgotten or neglected in the sphere of virtual worlds. The idea is to re-balance the uneven relationship between game owners and players perpetuated by the end-user license agreements (EULAs), recognising property rights to users over their own virtual creations. In order to evaluate whether a user’s contribution to the virtual world amounts to an original and creative work and is worthy of copyright protection, the essay proposes the image of a jigsaw puzzle as a tool and criteria to carry out such examination.

Secondly, the author states that the utilitarian theoretical justification for intellectual property rights does not account for all the dimensions and aspects involved in the user/avatar relationship, namely for the personal attachment and the process of self-identification the former develops toward the latter. In order to fill such lacuna, the author resorts to Margaret Jane Radin’s Theory of “Property for Personhood.” In this context, Radin’s theory is deemed to be successful in capturing the personal attachment users develop with their avatars, recognizing such characters not merely as property interests, but as personal and intimate connections to one’s sense of self. Furthermore, such theoretical perspective reinforces the convergence of both property and personality dimensions upon the figure avatar, a key feature of this character.

Thirdly, the author argues in favor of granting users with virtual property rights over avatars, drawing from Fairfield’s theory of virtual property, but justifying such entitlement in light of Radin’s theory of “Property for Personhood.” By articulating a hierarchy of stronger and weaker property entitlements in terms of their relationship to personhood (through the image of a continuum from fungible to personal), Radin’s theory is indicated as particularly suitable to resolve property rights disputes between game owners and users. Such understanding is based upon the conceptualization of the avatar as personal property, which, according to the “Property for Personhood” thesis, merits stronger legal protection than fungible property.

Finally, by combining Property for Personhood theory with the Utilitarian one, the paper advocates a more “ecumenical” view in the articulation of the different property theories, refuting the generalized prejudice of perceiving them as rival and incompatible perspectives.

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