The special chemistry between hindsight and foresight can spark insightful observation, reflective interpretation, and informed vision-making across different temporal dimensions.

The EU-funded Horizon project CREATIVE IPR time travels through intellectual property rights in creative industries to understand the backdrop in which IPR emerged and the regulatory challenges faced by those who are “at the edge of art and commerce (1)”. Led by Véronique Pouillard, Professor of Modern International History at the University of Oslo, CREATIVE IPR’s historical perspective runs through multiple strands of research in intellectual property rights. Legal, business, economic and technological history will inform the project’s analysis of empirical data coming from unpublished archives’ materials and printed sources.

This ERC Grant will carry on until February 2025, exploring comparative and connected histories of European intellectual property rights in the fields of fashion, music, performing arts and luxury design. Each domain is investigated through the cross-cutting themes of authorship, branding, transnational institutional frameworks, and collective organisations involved in IPR management.

The collective dimension is particularly significant in shaping the evolution of IP rights from the 19th century onwards. The history of IPR in creative industries is one of negotiations and resilience in contested spaces of authorship. Behind lobbying, at different moments in time, are often professional associations and collective management societies in which authors/creators cooperate to protect their creations.

Drawing from her expertise in the history of fashion and luxury design, Pouillard explains how the very first battle for a patent was spurred by a timeless innovation such as the sewing machine. In 1856, key inventors of sewing machine technology chose to overcome patent disputes among themselves by agreeing to cross-license their patents, creating the first patent pool and making a significant step in cooperative patent licensing.

Even today, the cooperative potential of IPR can be a powerful tool to counter the ‘arms race’ to intellectual property. According to Pouillard, the desirable way forward for IPR is to “keep copyright and patent negotiations outside courts, promoting bi-lateral conversations, and equip authors, individually and collectively, with tools to help finetune negotiations and build adaptive cooperation arenas.”

This approach is fundamental to avoid big players spoiling the balance of representation with litigation scares that push smaller actors away. In the music industry, platformisation has changed listening patterns and a new ecosystem based on agglomeration threatens the visibility of individual artists/performers.

Pouillard underlines how, although an enlightened use of IPR can support the safeguarding of labour rights, these qualify as fundamental human rights: “IPR can integrate and emphasise creators’ rights but it cannot (and should not) substitute for workforce protection tout court”.

Given its soft spot for marginalised creators, Creative IPR has looked at their struggles and investments in IPR through two main research threads: authorship regimes in French colonial and postcolonial Algeria and the role of female performers in negotiating spaces of performing rights from the late 19th century to the 1960s.

The project witnessed first-hand resilience’s generative power led by cooperative responses to dire times. “Especially during COVID-19 when music artists, unable to perform live, teamed up with designers on merchandise, creating new and less vulnerable profit avenues”, notes Pouillard. Post-Covid, luxury brands, following Chanel’s example, quickly bounced back by partnering with artists from other domains for shared artistic ventures”.

As a historian, Pouillard stresses how a future outlook on innovation must be aware of time and place. Regulations ought to be up to speed with the mutated production and consumption landscape of creative products. The Berne Convention (1886), although updated several times, remains a foundational international agreement for copyright protection. Legislative times need to pick up speed to allow IP regulation to quickly adapt and respond to rapid technological progress and changes in consumption.

Our re-elaboration of IPR must account for virtual spaces and integrate traditional copyright and trademark rights within the expanding metaverse context. The legal dispute over an iconic Hermès handbag released in the metaverse by an individual artist as a set of NFTs establishes a precedent for how intellectual property rights may be regulated and enforced in this new digital domain. “How do we deal with the immaterial dimension where virtual representations and elaborations of physical products come to life?”, Pouillard wonders. Who do we ‘protect’ and how?

Time is also a crucial factor in the debate over shortening copyright terms. Disney's lobbying to extend rights over Mickey Mouse highlights the conflict between corporate interests and the public good, including future creators.

While some aspects of innovation management and IP regulation need to be fast paced, the concept of innovation should be decoupled from high speed. “Innovation can go slower and still be robust and long-lasting” - Pouillard explains - “We have seen it with crucial inventions such as the sewing machine, the radio, the bicycle: these have all been updated and improved but have been around for a long time”.

Slower growth in the creative industries is tied to sustainable innovation. “We can innovate by prolonging the life of certain creations without overloading the planet”. IP regulation should focus on capturing value not just through re-production but also through re-creation. In fashion, this involves caution towards fast fashion models that encourage excessive production of ‘copies’.

Pouillard emphasizes the importance of place and location in guiding creative industry innovation, advocating for Europe and the Global South to foster creative alliances. Fashion is off to a happy start. “The joint campaign between high street fashion giant H&M and Rich Mnisi, a young South African designer of Tsonga heritage, is a good example of the creation of branded value through spotlighting a geographically marginalized artist”, Pouillard acknowledges. A similar partnership is that of European luxury Maison Dior and Uniwax, a leading manufacturer of wax print fabrics in West Africa, which brought traditional manufacturing expertise to the attention of luxury fashion (2) .

By highlighting the complex interplay of national, collective, and individual agency which marked the contingent evolution of intellectual property rights, CREATIVE IPR helps craft time-responsive policies that balance creators’ needs with sustainable innovation demands.

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(1) Dreyfuss, Rochelle Cooper, and Jane C. Ginsburg, eds. Intellectual Property at the Edge: The Contested Contours of IP. Vol. 22. Cambridge University Press, 2014.

(2) More on this topic is available in Open Access in Pouillard, V., & Dubé-Senécal, V. (Eds.). (2023). The Routledge History of Fashion and Dress , 1800 to the Present (1st ed.). Routledge.

This is an article from the Horizon Future Watch Newsletter (Issue 4, Novem ber 2023), presented by Foresight on Demand I.

Mentions of

From Sewing Machines to Fashion NFTs

Time Traveling through IPR in Creative Industries