Hello creatives,

I thought I’d take some time to discuss intellectual property in broader terms as it is a topic that is rich with history and has many sociopolitical layers to it.

On the global stage, intellectual property is the mechanism that allows the protection of created works. Collectively, the international laws surrounding intellectual property is the product of more than 100 years of diplomacy, with the most recent and current iteration stemming from the World Trade Organization and a document signed by 152 countries entitled Trade-Related Aspects of Intellectual Property (TRIPS) Agreement.

The History of Intellectual Property

But let’s back up a bit and walk through the history of intellectual property to understand how the TRIPS Agreement came to be. When exhibitors refused to attend the International Exhibition of Inventions in Vienna in 1873 out of fear their ideas would be stolen by their competition, out became apparent to European leaders that international legal standards for created works needed to be set for international trade and commerce to occur peaceably.

It took ten years for political leaders to set up the Paris Convention for the Protection of Industrial Property. Now, this particular convention covered topics specific to protecting the inventions and patents of industrialists, but it also touched on issues such as trademarks.

After this successful convention, Victor Hugo founded the International Literary and Artistic Association and gave the organization the mission of creating international protections for creative works such as:

• novels, short stories, poems, plays;

• songs, operas, musicals, sonatas; and

• drawings, paintings, sculptures, architectural works

Due to this political pressure from the creative community in Europe, in 1886, political leaders met to broker a legal standard for cross-border copyright protection and trade specifically for artistic, literary and scientific works. Three basic principles were established which are paraphrased below:

1. Countries who agree to the standards set forth by the convention agree to treat the copyrighted works of their own citizens in the same manner as copyrighted works created by the citizens of other countries who signed the agreement.

2. When a work is created, it is “automatically” protected under copyright without any extra conditions necessary to prove the creator owns the rights to their work.

3. The country of origin dictates the extent of the copyright standards. This means that while the minimum standard is protection for at least 50 years after the death of the creator, other countries may choose to enact copyright protection for longer. However, this longer protection is only given to works created in those countries and not beyond those borders.

The negotiations continued for several decades with regular conventions held to revisit and revise the topic. The final amendment was made in 1979. The culmination of this agreement involves the following list of core rights granted to creators:

• the right to translate,

• the right to make adaptations and arrangements of the work,

• the right to perform in public dramatic, dramatico-musical (theatrical) and musical works,

• the right to recite literary works in public,

• the right to communicate to the public the performance of such works,

• the right to broadcast (with some countries opting for a right to be paid for their work being broadcast rather than granting full control over whether or not a work is used in broadcasts),

• the right to make reproductions in any manner or form (with some exceptions allowing for fair use and educational purposes)

• the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work

This has become the basis for much of the intellectual property law that exists today. But the systems that support them were still very much in development.

The Madrid Agreement in 1891 established the international registry for copyright and trademarks. In 1893, the United International Bureaux for the Protection of Intellectual Property was established in Berne, Switzerland, which would eventually, in 1970, become the World Intellectual Property Organization (WIPO). Four years later, WIPO comes under the umbrella of United Nations organizations.

Then we get to the 1995 TRIPS Agreement, which also establishes an enforcement agency, the World Trade Organization (WTO). The WTO operates a council that acts as a judiciary mechanism for IP disputes at the international level. Today, there are 166 countries who are members of the World Trade Organization and therefore abide by the TRIPS Agreement.

Why Global Intellectual Property Rights Matter

Why is this so important? Well, having global minimum standards for the codification of intellectual property rights within each individual country that adheres to the policy creates an environment conducive to intellectual property development that can then be exported across countries of origin. But what do we mean by intellectual property development, particularly as it relates to creative fields such as media and entertainment, publishing, video games and other industries that drive culture?

Films, books, music, art, video games, these are all covered under copyright laws. As the WTO’s book Introduction to Intellectual Property: Theory and Practice explains, the author of a work has the right to make copies or derive other types of work from an original. A creator has the right to authorize (or block) the reproduction of an original work. This means a creator can be free to create without having to worry about copycats. This would be copyright infringement, which carries sanctions and legal ramifications. The key here though is that these rights are for created works, not ideas in and of themselves. Therefore, intellectual property regimes set forth by TRIPS encourage and empower creatives to act on their ideas. This is the essence of IP development: to transform intangible concepts into tangible forms for the creator to economically benefit from and the public to consume and enjoy. In doing so, a creative economy emerges.

Without the copyright protections laid out in the global intellectual property regime, there would be less economic incentive for developing such intellectual property on the part of the creator. The existence of these frameworks enables entire industries to emerge to support the development of these various categories of copyrights.

One such category of copyright, derivative works, is the nexus for storytelling across multiple mediums. Article 2 of the Berne Convention, which was one of the many foundational principles for the TRIPS Agreement, defines derivative works as “those based on other pre-existing works, such as translations, adaptations, arrangements of music and other alterations of a literary or artistic work” and clarified that these derivative works “receive the same protection as original works.” The Berne Convention of 1886 stated that creators owned the rights to their works for a minimum of 50 years after their death and that these rights must be honored across all member states in the treaty. These principles were upheld in the TRIPS Agreement.

As storytelling archetypes are retold across different mediums (books, film, plays, video games etc), multimedia franchises are developed and consumed by the public. This process occurs through several interventions on the industry and governmental level.

Industries emerge from the economic activity that is generated by the development of derivative works. Many of these derivative works are seen today in the form of multimedia franchises, which in academic settings is sometimes referred to as transmedia or cross-media. Ross Berger defines transmedia storytelling in his book Dramatic storytelling and narrative design: a writer’s guide to video games and transmedia as “the communication of a single-story experience across various media and platforms…such as television, books, digital content, games, film, and live events where upon each deliverer provides a different section of that single-story experience.” This definition highlights that each adaptation for a story requires exploring various aspects of the story that is unique to the medium. For example, a book can place the reader within the mind of the characters while a film can immerse the viewer in the visual world of the story.

Multimedia franchises are supported by the copyright protections granted to derivative works. If the intellectual property regime set forth by TRIPS did not exist, the collection of cross-media creative works found within multimedia franchises, such as the adaptations for J.R.R Tolkien’s Lord of the Rings, J.K Rowling’s Harry Potter, George R. R. Martin’s Game of Thrones, and of course the Marvel Universe created by Stan Lee, may not have been developed.

Creative economies thrive off the nearly 150 years of diplomatic work done to grant and protect their copyrights across borders. These foundational principles are the bedrock of my eventual thesis paper and hopefully, this blog post has empowered you in understanding the rights you have to your creative works.

Until Next Time,

Rochele Rosa