Who Owns Originality?

Is Anything Truly Original?

Debates have raged throughout history around when the last ‘new’ thought was, with some saying it was the discovery of the quantum realm in the early 20th century, and others saying there was Nothing New Under the Sun since Biblical times. Whatever you think about the provenance of originality, there is always innovation in method, new variants of recipes made from ancient ingredients and new presentations of recycled ideas. Every moment in time holds the potential to give us something new, and all industries, whether they be business, science or creative require a level of trust, respect and protection in order to function effectively; and that’s where Intellectual Property comes in.

Intellectual Property: Protecting Ideas Through History

Intellectual Property or IP, is generally characterized as non-physical property that is the product of a concept or creation and is protected in law by the components of trade secrets, patents, copyright and trademarks. Typically, rights do not surround these abstract non-physical entities; rather, intellectual property rights surround the control of physical manifestations or expressions of ideas, which may have financial benefit, professional/reputational significance, or recognition attached. Intellectual Property has been important for centuries; with the first known instance of patent law emerging in 15^th century Venice; although well before this there were many instances of informal IP, royal decrees, codes of conduct and gentlemen’s agreements. For every innovation or invention throughout history, there have been structures in place for protection and secrecy - the breaking of which could potentially result in punishment by death or the balance of power shifting irrevocably.

The Silk Road and Industrial Espionage

One famous example of this was the theft of silkworm eggs from China in the 6^th century CE; the production of silk was China’s most coveted secret and their process of sericulture was a mystery to the rest of the world. The Roman Empire spent fortunes on their highly desirable and luxurious silk, (their ‘own’ fabrics being wool or linen), transporting it across the treacherous and lengthy silk route and then paying out again on import tax. Around 552 CE, during the reign of Justinian, two Byzantine monks smuggled out mulberry silkworm eggs, larvae and mulberry leaves in hollowed-out canes, breaking China’s monopoly on silk production and bringing the previously secret process to Europe.

There are many stories around the motivation for this (perhaps pressure and/or a reward from the Emperor) and also around the method of their theft – and some would say that the local Chinese silk workers were surely involved. Whatever happened, the monks’ journey back to Constantinople took two years, and the whole process must’ve been highly risky. As a result of their efforts, Byzantium was able to establish its own silk industry, which then spread into wider Europe, reducing reliance on costly imports from China and Persia. By the time of the Renaissance, cities like Florence and Venice had become key players in the European silk trade – although China did retain its reputation as having the best quality silk for hundreds of years.

From Ancient Secrets to Modern IP Theft

This early example of industrial espionage is key in understanding the potential impact of IP theft. Whilst nobody ‘owned’ the silkworms, the Chinese had discovered a way to harness their silk and had created an invaluable commodity around it. And whilst it is too simplistic to say that the Byzantine monks brought down the whole of the silk industry (because China was politically unstable at the time and other things were at play), their actions do illustrate how the spread of technology can disrupt existing power dynamics and create new economic centres.

Creative Industries: Who Owns an Idea?

The story of the silkworm eggs has echoes in the later ‘thefts’ of tea cultivation and porcelain from China, as well as countless other attempts to expose various trade secrets in other countries across the world. One famous example of this was the attempted trade secret theft of the Coca-Cola recipe, which occurred in 2006, when three employees attempted to steal confidential information and sell it to Pepsi. Joya Williams, who worked as an administrative assistant for Coca-Cola, collaborated with two accomplices to steal confidential documents and an actual sample of a new product, and then contacted Pepsi, offering to sell the secrets for $1.5 million. But Pepsi did not bite, and instead of taking the deal, they told Coca-Cola – and the FBI, resulting in prison sentences for all involved.

Magic Tricks, Ethics and the Magician’s Code

Like many companies or individuals who want to protect a recipe, method or formula, Coca-Cola chose a trade secret over a patent to powerfully protect their IP - and as result, their formula has been confidential for over a century. It is said that the recipe is kept in a vault at the World of Coca-Cola museum in Atlanta, with employees only knowing certain aspects of the ingredients at any one time, or signing NDAs, or even undergoing security monitoring. If Coca-Cola had chosen a patent they would have had to reveal their ingredients by now, and the limited time protection on the recipe would have run out years ago.

When Privacy and Intellectual Property Collide

A world-famous company such as Coca-Cola has a multitude of resources at its fingertips to protect its secrets, but what happens when there is less clarity around who owns what? Individuals within the creative industries for example, often struggle to define the parameters of artistic boundaries, with copyright laws being difficult to enforce- particularly in the present day when the ease of technology can so quickly undermine originality.

Guarding Creative Techniques in the Renaissance

In the 1400s, Renaissance architect and artist, Filippo Brunelleschi is credited with re-discovering linear perspective (the ancient Greeks had already worked it out), a technique which enables artists to create a sense of depth and realism, and a method which was highly sought after amongst the artists of the day.

Creating an accurate illusion of space in paintings, particularly when placing a figure in the composition, was crucial to Renaissance art, and each independent workshop closely guarded their methods in order to secure the best commissions of the day - sometimes even sending a ‘double agent’ Apprentice spy into a rival studio. Italian Humanist and artist, Leon Battista Alberti wrote the first theoretical treatise on linear perspective, ‘On Painting’ in 1435, formalising and spreading Brunelleschi’s method and it is said that Albrecht Dürer travelled to Italy specifically to ‘steal’ the techniques of perspective, which he then took back to Germany and published, making the technique even more widespread. 

Creative Plagiarism and the Challenges of Copyright

Keeping artistic technical methods secret has lessened considerably since Renaissance times, but issues such as originality and creative plagiarism are still rife within the creative industries (and education), and are not easily solved by copyright, trade secrets or patents.

Magic, Secrets and Breaking the Code

One such arena with particularly unclear legal protection is the world of entertainment magic and this was dramatically brought to our attention in the 1990s when Val Valentino, aka the Masked Magician, decided to reveal classic tricks which had previously been kept secret on his TV series, Breaking the Magician's Code: Magic's Biggest Secrets Finally Revealed.

The Magician’s Code or Oath had, up until then, protected the processes of the magic being revealed, but was not legally binding in a clear way. Valentino took it upon himself to expose age old illusions such as sawing a person in half, levitation and making an elephant appear out of thin air; and whilst these historic tricks essentially belonged to no-one, Valentino’s exposure of the methods behind them sent shockwaves throughout the magic community, resulting in widespread dismay and fury.

Interestingly, Val Valentino argued that the reason behind his decision was because he believed that technology was changing magic, and that magicians needed to adapt. He reasoned that with the rise of the internet at that time (1990s), secrets were already becoming more accessible on video platforms such as YouTube, and so exposure was inevitable. He also reportedly suggested that special effects and digital advancements were making it harder for traditional stage magic to impress audiences, and by revealing classic tricks, he was pushing magicians to evolve and find new ways to engage and amaze people. His exposure of magic tricks exacerbated the tensions between secrecy, ethics, and intellectual property law within the magic industry, and in turn, his actions sparked a debate over whether magic tricks should have stronger IP protections, or whether exposure would force magicians to innovate and create new illusions.

Privacy, Creativity and Ownership in the Digital Age

Whether you’re a business, artist, magician or inventor, history proves that guarding your intellectual property isn’t just about money—it can also be about reputation, integrity and even survival.

The question of what should be an ‘official’ trade secret and what might just need to be kept private is an interesting one; a business may want to actively market themselves or their product without giving away any of their IP, but also may feel tempted to do exactly this to impress their 21^st century, media savvy audiences. Consumers are flooded with online stimuli every day and it seems to be getting harder to cut through the noise, and everybody loves to hear a secret (don’t they?)

The Internet: Re-shaping Secrets and Privacy

The internet has fundamentally reshaped our relationship with secrets by making information more accessible, permanent, and difficult to control and potentially weakening traditional industry gatekeeping. In the past, secrets - whether personal or professional - were easier to keep within closed circles, but now, with search engines, social media, and online communities, almost any knowledge can be shared instantly and spread globally.

On an individual level, the information which is given/taken online is staggering - a cause of concern for some time - and aside from concerns about data protection, the concept of privacy seems to be increasingly tricky to navigate. From the beginning, children have online access earlier and earlier and according to Ofcom’s 2024 Children’s Media Literacy report, 96% of children aged 3-17 went online in 2023, with 84% of children aged 3-4 having access to the internet.

Online proctoring and the right to privacy

During the COVID-19 Pandemic, online presence went up considerably as existing trends in internet usage were accelerated by the limitations of lockdowns, social distancing and school/college closures. Online proctoring – a system that remotely monitors students during exams to prevent cheating - was one such instance where an existing structure was needed more than before. However, numerous legal challenges, particularly concerning the right to privacy and biometric data collection have been raised in the subsequent years, with several legal challenges arising.

In the U.S., students sued universities over invasive room scans, with Ogletree v. Cleveland State University (2022) ruling that they violated the Fourth Amendment and as a result, set a precedent that room scans might be unlawful in the future. By contrast, in 2021, a court in the Netherlands ruled that the University of Amsterdam’s use of surveillance software during online exams did not violate students' privacy. In this case, the court emphasised that as an educational institution, the University had a legal obligation to provide education, administer exams, and award degrees – and that under GDPR regulations, universities are permitted to process personal data when necessary.

The Personal Impact of IP and Privacy

Whatever your view in this context, there is an important debate to be had around what does and does not constitute an invasion of privacy – and how technology can appear to align (or not) with it.  Privacy and Intellectual Property can be personally connected when it comes to the creation and sharing of one’s own ideas, works, or content online – and it’s interesting to think about how this might relate to concepts around identity and creativity.

 

For example, when you write a blog, make art/music, or develop a new product, your ideas and creations are not only tied to your personal data but also to your hopes and dreams. If your work is then shared or sold online, how your personal information (eg contact details), as well as how your creative process is handled becomes a privacy concern. And if someone misuses that data or infringes on your IP without your consent, it can feel like a violation of both your privacy rights and ownership over your creations.

The Information Privacy Paradox

Interestingly, research shows that opinions on privacy are contradictory, with some surveys suggesting that privacy is a primary concern and others implying that people will freely reveal personal information for relatively small rewards – such as attention from peers on social forums.

There is often a mismatch between attitudes and behaviour around privacy, and this inconsistency has been coined the information privacy paradox. Investigation is ongoing into how this dichotomy between attitude and behaviour can be explained, but could we, for now, understand it as simply being human?

Trust, Honour and the ‘Right Thing’

Or perhaps this is where trust and integrity come in; when there is unclear legal protection or inconsistent behaviour around privacy, we might find ourselves having to rely on concepts such as honour, or a gentleman’s agreement, or even just the notion of doing the ‘right thing’ – all of which can potentially become a moral maze – especially with the backdrop of 21^st century technology and AI.

Secrets, Power and Originality

There are so many interconnected issues within a discussion of IP – original thought, secrets, competition, protection, legacy, honour, privacy – and if any one of these are even slightly compromised, there can be far reaching consequences. For centuries, quests for hidden knowledge, secret ingredients and protected methods have been part of progress. From alchemists guarding their elixirs, to corporations protecting trade secrets, the desire to control rare and powerful formulas remains unchanged. In the world of IP, you could say that the past and present are connected by the fact that knowledge is power - if you can keep it a secret.

And whilst you might question what original thought actually is, there will always be the tantalising possibility of creating something new out of what was already there. Perhaps we all ‘own’ originality.

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