In this essay, I consider whether increased intellectual property protection for stories and folktales is a wise policy course. I argue that greater intellectual property protections risk serious harm to innovation and creativity by narrowing the public domain and are not the best means to achieve these desired ends. To make my argument, I draw on the Dick Whittington story as both an example of a folktale in danger of overprotection by expanded intellectual property regimes and also as an analogy to the legal treatment of folklore over the past several decades.
Part II focuses on the Dick Whittington story as an example of folklore that has spawned a wealth of creative works. It traces how the life of a real historical figure, Sir Richard Whittington, became a folktale. Just as the real Richard Whittington's money still funds many charities, for hundreds of years the folktale based on his life has served as the basis for many new creative works, especially children's books and pantomimes.
The remainder of the essay draws parallels between the Dick Whittington folk tale and the legal protection of folk stories at the national, regional, and international level. Part III shows how traditional western copyright law doctrines bar protection for many folk stories handed down orally from generation to generation like Dick Whittington. Part IV delineates early efforts from the late 1960s to early 1980s to establish stronger national and international intellectual property protections for folklore despite the doctrinal problems posed by traditional copyright law. These efforts culminated in joint UNESCO-WIPO Model Provisions, which, although not law themselves, were designed to be incorporated into national laws to give sui generis intellectual property protection to folk stories and other kinds of folklore. Part V shows how these efforts did not succeed in broadly implementing intellectual property protections for folklore in national laws across the globe, although the Model Provisions did influence some jurisdictions, including a majority of African countries, to incorporate greater intellectual property protections for folk stories and other expressions of folklore into their laws. Part VI describes the latest attempts to set up an international regime for intellectual property protection for folklore, which is currently under discussion in a World Intellectual Property Organization (WIPO) committee as well as, to a more limited extent, in the World Trade Organization (WTO). Part VII contends that implementing specific intellectual property protections such as the current draft principles and objectives under consideration in WIPO are not clearly a happy ending for folklore because of the impossibility of determining what is protectable and the serious danger of hindering future creativity and artistic development. The essay concludes by advocating a cautious approach to the problem that will better respect the importance of a robust public domain.
Susanna Frederick Fischer, Dick Whittington and Creativity: From Trade to Folklore, From Folklore to Trade, 12 TEX. WESLEYAN L. REV. 5 (2005).