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The history of intellectual property law — and why it could shape your future

A wall painted with coloured graphics including a central light globe, with a human hand reaching up as if holding it.

The words "intellectual property" mightn't set your mind alight, but according to one expert, it's "the most important thing that you don't realise is going on".

IP, as it's often referred to, affects our breakfast cereal, the toys our kids play with, our internet connection — even the music we listen to.

"It's enormous, and you don't even notice it," law professor Dan Hunter tells RN's Life Matters.

"Our entire society around media and internet ... wouldn't exist without intellectual property."

So what exactly is IP — and why should we care?

Ancient roots of IP

IP isn't a modern concept — far from it.

In its various forms, Professor Hunter says, it's "been around probably for 3,000 or 4,000 years" and dates back to Ancient Greece.

"Someone stuck their label, their mark on some kind of pot and said, 'This is mine. I created this and now if you want to buy something like this, come back to me'."

Simply put, IP law enables people to control what happens to their idea or creation — and stop others ripping it off.

Terri Janke is a lawyer and managing director of a Sydney-based law firm specialising in Indigenous cultural and intellectual property.

A woman with shoulder-length brown hair, a black suit jacket and purple floral top smiles widely.

She says IP is "useful to protect ideas and innovation, especially from commercial exploitation".

"It gives rights to people to protect their commercial ideas," she says; and those rights encourage creativity — in pretty much every facet of life.

Music, film, supermarkets, the internet — even lightbulbs — are all covered by intellectual property laws.

But the laws don't always work in everyone's interest.

Barbie 'ripped off' from a German sex toy

IP laws encompass copyright, patent and trademarks.

"Copyright protects works, so things like [radio programs], music, books," says Professor Hunter, who is co-editor of A History of Intellectual Property in 50 Objects.

"Patents protect inventions, so useful ideas. And trademarks protect brands."

IP can be applied in the interests of fairness, but also in the interests of power and money.

The origins of Barbie provide a good example of IP ruthlessly at work.

Today the doll is known as a wholesome valley-girl type, but Barbie wasn't always like that.

"Originally she was a cartoon character in a newspaper called Bild-Zeitung, and then got turned into this doll called Lilli, that was available in German-speaking Europe," Professor Hunter says.

A plastic doll with rigid limbs sits, wearing a polka-dot dress, black high heel shoes and make-up, and with blonde hair.

The doll has been "variously described as a sex doll or a sex toy".

Men gave the doll to their mistresses rather than their kids, while truckers had it on their dashboards.

Ruth Handler, who created Barbie, was travelling through Europe in the '50s when she discovered the doll and "reengineered" her, Professor Hunter says.

"She basically knocked it off, turned it into Barbie — Barbara Millicent Roberts — and the rest is history."

He says the story reveals a "moral problem".

"Mattel ripped it off and then, only later, when the lawsuits started to be in the offing, they bought the rights ... and hushed it all up," he says.

A man with glasses and slicked back short hair, short beard and moustache, smiles with mouth closed.

"So Barbie is not as wholesome a Midwestern gal as everyone thinks."

Nor is IP's reputation clear cut.

"It's about control," Professor Hunter says.

"You can license it, you can give it away, but it's yours and you make that decision."

An IP 'pushback'

When IP works for good, it is a fierce protector.

Take the "great Australian story" of the CSIRO scientists who invented and patented the mechanism at the heart of WiFi — then spent years locked in legal battles with companies like Apple, Microsoft, Dell and Intel, who were using the technology without paying royalties for it.

IP law eventually determined those companies owed CSIRO royalty payments.

But Professor Hunter says IP laws don't always work for the good of all.

"There's a lot of reasons why IP causes problems, and over the last 20 years there's been a bit of pushback," he says.

"[IP] is a property, and businesses and people like having property. When they've got property, they want more property.

"And so there has been kind of a pushback to say, you know what? There are some areas that should be left open to everybody to use."

Ms Janke says there are "more and more" arguments over what should or shouldn't be in the public domain as IP law tries to keep up with the digital age.

She says Australian IP laws have had some recent revisions, but are "always trying to catch up with shifts in digital technology, for example, and the way that people interact with a work".

"We are reading books in digital form, and we are wanting to use artworks as memes ... they become different ways of people wanting to access material. And it might not always be appropriate," says Ms Janke.

When IP allows for the 'capture of Indigenous knowledge'

There's also pushback at the intersection of IP law and traditional cultural practices.

"A lot of the stuff that Western companies — and Westerners in general — are getting protection over is knowledge that comes from thousands of years of cultural tradition, typically of Indigenous groups," says Professor Hunter.

Ms Janke says there are gaps in IP laws when it comes to Indigenous culture that can "allow the capture of Indigenous knowledge and the IP resting with someone else".

She says Indigenous communities are among the poorest in the world, and when "they aren't given an opportunity to benefit from the economic use of their knowledge" it compounds inequity.

"It disenfranchises us from our cultural legacy and our obligation culturally to be in charge of that dynamic," says Ms Janke, a Wuthathi-Meriam woman.

She gives the example of the case of Aboriginal artist Bibi Barba, who discovered her artwork had been replicated by an interior designer in a Polish hotel without her permission — and without any payment, which the artist is still seeking.

"There's been heaps of instances where people have taken Aboriginal art designs and copied it. People just source Indigenous design," she says.

At the other end of the spectrum, Ms Janke has "really liked" the recent partnership between Gorman and Aboriginal arts centre, Mangkaja Arts, in WA's Fitzroy Crossing.

"It's respectful," she says. "It's not just taking the design and putting it on clothing. [It's] been very considered."

Indigenous artists from Fitzroy Crossing, WA, have teamed up with Lisa Gorman (left) founder of Melbourne fashion company Gorman

"And the copyright remains with the artist."

She says it's a partnership that demonstrates a positive trend.

"More Indigenous people are interacting with [IP laws]," she says.

"Gorman's involvement with that art centre collectively, and the way that the community and senior elders are involved in the promotion and launch and sharing of royalties from sales of the work — I think that's an interesting model."

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