How should a legal system treat advances of new technologies and practices that may end up reshaping human identities and social interactions? In this chapter, I consider practices of firms drawing on automated decision-making technologies to construct profiles of individuals based on their personal data and using these to develop new products and services, frame individual preferences, and foster consumption in new media and entertainment markets. Still at an early stage, the practices are becoming a basic business model of the digital economy despite all the argued social costs of removing distinctions between private and public life, appropriating valuable data resources away from individuals who generate the resources, and treating human identity as subject to effective control of the machine and its masters. Should the weight of an intellectual property system geared to the protection of intellectual assets, in this context valuable data, be extended to such activities, subject to specified limits and exceptions? Or should the practices be left to operate outside the rubric of legal regulation, at least for a while, adopting a ‘sand-box’ approach, effectively leaving it to firms to regulate themselves in exploiting the available data resources and in the process accumulating intellectual assets? Or is there a way in between, offering scope for effective legal regulation of social costs associated with misuses of personal data as and when these costs emerge, but otherwise allowing practices to operate without legal constraint?

This collection of essays, by leading scholars and practitioners from a range of countries, pays homage to a pre-eminent figure in the field of intellectual property: Sam Ricketson. Inspired by the breadth of Ricketson’s work, the contributions explore issues from a perspective that looks across the field – in particular, across the regimes, jurisdictions, disciplines and professions of IP. Topics explored across the regimes include the nature of IP subject matter, overlaps in protection, historical connections between copyright and patents and the transplantation of civil law moral rights to common law copyright. In across jurisdictions, chapters address, inter alia, the application of private international law to cross-border IP disputes, the Berne Convention and AI-authored works, how countries might exit the Berne Convention and dispute settlement under TRIPS. The intersection of copyright and privacy laws, the relationship between privacy, personality and trade mark laws, the teaching of IP and human rights and the conduct of empirical and historical research in IP are among the matters considered across disciplines. Contributions across professions include the participation of scholars in IP policy making, the IP textbook in legal practice, and the role of expert evidence in IP litigation.

This chapter considers the trade mark system established towards the end of the nineteenth century and already taking on many of its modern characteristics in the period up to World War I. It points out how Anglo-American and Australian law was shaped by a modern idea of the individual’s power and desire to establish, maintain and control personal identity, drawing on the world of signs. In part, this can be seen in the liberty allowed for registration of personalised signs that traders might wish to adopt and use to express themselves. But, there was another aspect, more focussed on the domain of resistance to labels, that was evident in the statutory restraints allowed on registration of personal names and images inter alia through specific provisions in the US and the Australian Trade Marks Acts of 1905. The latter restraints and their afterlives are the particular concern of this contribution to the volume.

IT IS SAID that celebrity is a combination of the celebrity producer, the celebrity figure and the public. And all three are evident in Napoleon Sarony's iconic portrait of Oscar Wilde—No. 18 of a set of 27—taken in Sarony's studio in New York at the beginning of Wilde's American tour in January 1882. Sarony created the portrait, posing Wilde, arranging his contours and approving his expression (intelligent and thoughtful), selecting the props (Wilde's dandified clothes and the book in his hand signifying the idea of the intellectual aesthete), and ordering the background (the rich Persian carpet on the floor adding to the impression of cultivated aestheticism, drawing here on the Orientalism that Wilde and other British aesthetes favored). Sarony's recognizable customized signature at the bottom of each image completes the suggestion that America's leading celebrity photographer was responsible for the remarkable image. But without Wilde's distinetive figure, face. and personal renown as a literary celebrity even at this relatively early stage of his literary life, the photograph would mean nothing to the audience. And without an audience to be impressed, amused, scandalized, and mesmerized, in turn, there would be no point in the photographic author or his (in)famous subject taking part in the project.

The project was initiated by the entertainment entrepreneur Richard D'Oyly Carte, ‘Oily’ Carte as he was sometimes known, for the Gilbert and Sullivan comic opera Patience that Carte was producing, which was now commencing its American tour after a successful season in London. The show featured J.H. Ryley in the role of the poet-dandy Reginald Bunthorne and, concerned that the American public might not appreciate that such British dandies actually existed, Wilde was approached with the proposition that he tour alongside the musical to provide the necessary evidence, including sitting in the audience when the opera was performed, appropriately dressed and coiffured to reflect the character on stage—a clever play on things that worked to foster confusion as to just who was the copy and who was the original here.