The term intellectual property came to be widely used in the last quarter of the twentieth century as an umbrella term to describe a group of rights, including patents, *copyright, designs, and trademarks, each of which has its own legal specificities, its own statutes, jurisprudence, theory, and history. Despite those specificities, these have often been associated (at least since the eighteenth century), and categorization of them as “intellectual property” reflects the fact that each of the rights seeks to confer exclusive control over the exploitation of certain intangible entities—“inventions,” “works,” “designs,” and “trademarks.”
The characterization of the subject matter as “intellectual” is misleading, particularly in relation to trademarks, which, as we see below, do not necessarily involve any mental effort or creativity. The description of the rights as “properties” is also not always adequate, in so far as some rights (such as authors’ “moral rights”) are not assignable and some rights are merely rights to remuneration. Despite these caveats, the term intellectual property seems to have become fully established, being used in treaties, in statutes, and as the name of government institutions and nongovernmental organizations, as well as in law reviews, legal textbooks, and common parlance.
The categorization of these specific regimes together as “intellectual property” is not uncontroversial, with many commentators worrying that the umbrella term somehow implies that all creative productions warrant legal protection (a normative position they would not endorse). Certainly, the emergence of the term intellectual property has coincided with a proliferation of additional “sui generis” systems, such as the protection of plant breeders’ rights, “supplementary protection certificates” (for pharmaceutical products), “data exclusivity,” performers’ rights, database rights, the artists’ resale royalty right, rights in the topographies of semiconductor chips, collective and certification marks, geographical indications, rights in sports events, and even press *publishers’ rights.
This entry focuses almost exclusively on the development of these laws in Europe and North America. One reason for doing so is that there is little evidence of similar practices in the ancient world, or in non-Western civilizations. Indeed, the historian Carla Hesse has observed that “a tour of the other great civilizations of the premodern world—Chinese, Islamic, Jewish, and Christian—reveals a striking absence of any notion of human ownership of ideas.” Another reason for this narrow focus is that, whatever the position may have been in more ancient and Eastern cultures, they have had little influence on the international norms that are prevalent today.
“Intellectual property law” has rarely been viewed explicitly as a subset of the legal rules concerned with regulating the production, circulation, and consumption of information, the primary motivating concerns being articulated in terms of the protection of authorial genius, or at least literary and artistic creativity; the promotion of technological progress through incentivizing invention; and the prevention of free riding and consumer deception. However, on closer inspection, the regulation of information has had an important but distinct place historically in the development of each field. This essay seeks to highlight the ways in which the history of intellectual property is part of the history of the legal regulation of information.
“Patents” are legal rights, acquired by individuals (and corporations) through a process of registration, to control the making and use of “inventions,” understood as either products (such as machines or chemicals), processes (ways of making things), or even new ways of using existing substances. The term patent refers to the practice of the grant being by “open letter” (letters patent). Today, in most countries, an applicant must describe how to carry the invention into effect and identify the precise subject matter for which protection is sought in short statements called “claims.” Applications are usually examined by a relevant granting authority, which will conduct a search so as to ascertain whether the relevant application identifies an invention that is new and inventive (or at least not “obvious”). The maximum term for a patent is typically twenty years, though only around 10 percent are renewed for the full term; some jurisdictions have arrangements to prolong the term.
The earliest grants of exclusive rights over inventions are traced to early Italian city-states, perhaps most notoriously to the 1421 grant to architect Filippo Brunelleschi by the state of Florence of a three-year exclusive right to build and use a new ship for transporting goods. Venice codified its practices for the grant of such privileges in a 1474 statute that has often been described as the first patent law. Significantly, the grant of exclusive privileges was premised on standardized criteria, the invention or introduction of “any new and ingenious device, not previously made,” registration at a state office, and a ten-year term of exclusivity. By 1600, Venetian authorities had received over one thousand applications. While these regimes can claim to be precursors of modern patent systems, careful accounts acknowledge that these *early modern privileges were different from modern patents.
Scholars disagree on exactly when, how, and in what ways Venetian privileges came to influence the development of laws elsewhere. One common claim is that Venetian practices spread across Europe as a result of the movement of Italian craftsmen, especially glassworkers, who sought similar protections in their new homelands. The first patent awarded in France in 1551 was to an emigrant from the Venetian jurisdiction, Theseo Mutio of Bologna, for the production of glass “according to the manner of Venice,” while England was influenced directly by the movement of Venetian silk workers.
England’s Statute of Monopolies, 1624, is frequently treated as a key moment in the history of patent law, regulating, as it did, the Crown’s freedom to grant patents to “manners of new manufacture” and limiting the term of any such grants to a period of fourteen years. The time is reputed to represent two terms of apprenticeship, the premise being that a master would teach his apprentices and, following the expiry of the patent, they might use that learning to establish themselves. Thus, already, it seems an assumed benefit of the grant of patents was not just the practice of particular techniques but the idea of training of others, preserving and disseminating the relevant skills or practices. Of course, this dissemination occurred largely within the regulatory limitations of guild control prevalent in Europe until the eighteenth century.
With the revolutions of the late eighteenth century in France and the United States, the grant of patents came to be conceptualized as a matter of right rather than grace. Formal bureaucratic systems were established; the United States operated a system of examination from 1836. In England, where the system had developed incrementally, the procedure for the granting of patents was complex, and the level of examination variable. The numbers of patents granted in England remained relatively small until the nineteenth century. In response to various pressures, including increasing numbers of applications, the organization was reformed in 1852 with the establishment of a Patent Office, and the English, Irish, and Scottish regimes consolidated into a single system.
By this time, with the free trade movement at its height, the benefits of the patent system came under significant scrutiny, and a movement emerged in favor of the abolition of patents (famously succeeding in the Netherlands, where the 1817 patent law was repealed, and not replaced until 1910). Paradoxically, what emerged in Britain from this debate was a reformed system that bore great resemblance to that which we have today. Building on the experience of the United States and Germany, Great Britain introduced examination of patents to assess novelty in the first decade of the twentieth century (and later the requirement of an “inventive step”).
Bilateral trade treaties between European states led to foreign inventors being entitled to file for national patents on the same terms as nationals of the relevant state, generalized in a multilateral treaty signed at the Paris Convention of 1883 on the protection of “industrial property.” The effects were not always uncontroversial: many countries found their own manufacturers inhibited by foreign patents and responded by introducing requirements for local working and provision for compulsory licensing at rates set by an independent adjudicator. Gradually, international treaties limited the freedom of nation-states to modify their patent laws in this way.
In 1970, a system was established for international application, search, and examination of patent applications through the World Intellectual Property Organization, leading to grants of national patents. The late twentieth century also witnessed the emergence of regional patent arrangements, such as the European Patent Convention (1973), and greater levels of harmonization of patent law, in particular through an annex to the World Trade Organization Agreement, known as TRIPS (Trade Related Aspects of Intellectual Property).
While patents are most commonly understood as incentives for “research and development,” a persistent aspect of the history of patent law has been concern with the circulation and survival of information as to how things are made and processes carried out. Accounts of the early Venetian laws situate the privilege system in a context dominated by guild structures that operated to restrict the circulation of information about production techniques and draconian laws designed to prevent the emigration of skilled workers. In that context, in which information about how to make things was embodied in the workers, the movement of information was intimately connected with the mobility of people. Privileges were regarded as mechanisms to attract foreign skills, that is, to induce the movement of foreign artisans who carried with them valued technology. Indeed, privileges to foreigners to practice trade are found much earlier (for example, the 1331 grant of “Letters of Protection” by Edward III to John Kempe, a Flemish weaver). The 1474 Venetian statute specifically referenced persons who come to Venice “every day from different places … who have most clever minds, capable of devising and inventing all kinds of ingenious contrivances.”
If these early privileges were frequently mechanisms to induce migration of skilled workers who carried their technologies, from the eighteenth century a similar function was sought to be achieved through textual means. The patent “specification,” a document that describes how to implement the invention, first emerged in English patent practice in 1710 and became required from the 1730s. The United States and France adopted similar requirements in their laws of 1790 and 1791. With this move, it became common to characterize patents in contractual terms, according to which a patentee is granted exclusivity in return for disclosure of mechanisms and processes that might otherwise have been kept secret. In an era when restrictions existed on migration of workers and machinery, the disclosure requirement—though opposed by some important inventors, such as James Watt—appeared to recognize the public benefits from certain forms of “openness.”
In practice, the drafting of such documents soon became the preserve of “patent agents,” practitioners versed sufficiently in both science and law and able to steer patent applications past the objections raised by the offices—a process known as “patent prosecution.” Patent agents professionalized during the second half of the nineteenth century.
Jurisdictions have varied in the demands placed on disclosure, with some insisting that the “best method” known to the applicant be disclosed, while others only requiring that the disclosure “enable” the performance of the invention. Some legal systems have required, or provided for, nonverbal mechanisms for disclosure, such as through the provision and exhibition of models, and for some time patent regimes were linked to national museums of inventions. In adumbrating standards as to the adequacy of such disclosure, courts appealed to notional figures, such as the “ordinary workman” and latterly the “person skilled in art.” As early as 1790, the United States specifically embraced the idea that such specifications should be accessible to “the public,” and even in England (where access to such documents was more complicated prior to 1852), specifications came to be copied and circulated through the growing periodical press. The usefulness of the system was significantly increased through processes of indexation not just by inventor or chronology but also by subject—and printed publication. In England, this did not occur until October 1852. Apart from organizing its informational outputs, patent systems have also played an important role in standardizing and cataloging information about such things as chemicals or computer programs, in order to facilitate assessments of the novelty and inventiveness of the material disclosed in a patent application.
The patent system was not merely directly concerned with incentivizing disclosure of valuable information (from inventor to those interested), but itself came to be seen as a repository of information about society. In particular, economic historians have sometimes treated these patent registers as proxies for levels of “innovation,” allowing comparisons to be made about different levels of innovation in different countries, and correlations to be made with potential causes. However, others have pointed out that most patented inventions are never exploited, and many exploited inventions are not patented (propensity to patent varying significantly from sector to sector). Indeed, in the case of innovations in the process of manufacturing something, it has often been possible for inventors to practice their inventions in relative secrecy and thereby to secure a longer period of exclusivity than that provided by the patent system (with its obligatory disclosure).
Copyright laws do not tend to conceptualize themselves as protecting information. Rather, copyright laws give exclusive rights over “works” or “works of authorship” understood as “expression,” typically on condition that the expression is “original,” that is, in some (minimalist) sense “creative.” Examples of such works include novels, poems, plays, musical compositions, paintings, sculptures, and cinematographic works. Copyright includes the exclusive right to make reproductions of a work, distribute it to the public, perform it in public, and communicate it to the public, as well as to make adaptations of, and derivative works, from it. In modern copyright laws, copyright arises on creation (or, possibly, recording or fixation), so is conditioned on neither publication nor registration; and protection exists from creation (recording or fixation) throughout the life of its author and for a set period thereafter (most often fifty or seventy years). Associated with copyright are certain specific rights reserved to the author, often called “moral rights,” that protect the personal tie between authors and their work: these rights include the right to be named when the work is exploited, and the right to object to modifications of the work that are prejudicial to the author’s “honor or reputation.”
Extensive work has been conducted on the history of copyright. The two precursors of the modern idea of copyright (a right conferred by statute on authors) are printing privileges and practices of the guilds that controlled printing starting in the fifteenth century. Long before then some ancient authors manifested a sense of moral rights to their compositions, as in the complaints of Martial (first century CE) against those who recited his poetry as their own, or Galen (second century CE), who protested the sale of works on medicine falsely attributed to him.
Printing privileges operated in the same manner as privileges over inventions, as state or royal grants of exclusivity. As with invention privileges, the earliest examples come from Venice, including most notoriously a monopoly over printing itself conferred on the German printer Johannes of Speyer for five years. In the late fifteenth and early sixteenth centuries similar privileges were granted in Würzburg (1479), Spain (1487), Portugal (1502), France (1507), Brussels (1516), and England (1557). Alongside these there were papal privileges (from at least 1509) and the first rabbinic reprinting privilege (1518). Frequently such privileges were closely associated with receiving permission to publish.
In England, the printing trade was subject to control by a London guild, the Stationers’ Company, founded in 1557, whose monopoly was reinforced by statutes prohibiting others from operating printing presses. The company allocated rights to print approved texts to particular printers, thereby endowing them with a form of exclusivity. The term copy-right was coined in the eighteenth century as a reference to the Stationers’ Company’s (or perhaps author’s) right in the “copy,” a manuscript intended for publication (rather than the right to control “copying,” as might be assumed).
The control of printing by the Stationers’ Company was challenged in the late seventeenth century when the Licensing Acts lapsed. After a period of fifteen years in which printing was unregulated, the Statute of Anne, 1710, restored to publishers the right to control the reprinting of books, though with two important qualifications. First, the right (for works published after 1710) was conferred on authors, publishers being entitled only as their assignees; second, the right was limited to a term of fourteen years, and, should the author be alive at the end of that period, a further period of fourteen years. In effect, the 1710 Act created a *“public domain” for books in which exclusive rights had expired. The Stationers’ Company did its best to circumvent this limitation, arguing for a perpetual right at common law, but in Donaldson v. Beckett in 1774 the House of Lords rejected such a claim, at least for published works.
During the eighteenth and early nineteenth centuries similar rights were adopted in France, the United States, and the German states, often accompanied by sophisticated debate over the justification for recognizing such rights. Various rationales for copyright were embraced, varying from utilitarian conceptions of incentivizing creativity, to the recognition of the innate rights of authors in the results of their own creativity. Most legal systems developed toward offering protection to music, plays, and artistic works, as well as books, and to conferring protection for at least the life of the author. Those countries that saw themselves as granting protection to authors, as such, recognized special rights (so-called moral rights) of attribution and integrity and gave special protection to artists allowing them to claim a profit on the resale value of artworks (known as the “droit de suite”).
In the mid-nineteenth century, some of these countries sought to obtain recognition of the rights of copyright holders in nearby states, and, in 1886, ten states (including France, Germany, and Great Britain, but not the United States) established an international arrangement, the Berne Convention. A 1908 revision took the dramatic step of prohibiting registration (and other formalities) as a condition of protection (other than in the country of origin), and most of the countries that still had registration systems abolished them. The Berne treaty was revised a number of times, but the United States remained outside the arrangement until the late twentieth century, reluctant to forego requirements that, in order to be protected, works be marked with notices and that, in order to be enforced, they had to be registered.
In the twentieth century, copyright became a model on which claims were made to protection of investment in a host of productions: “cinematographic works” were treated as creative and thus within the Berne Convention’s ambit, while sound recordings and broadcasts were protected, along with the rights of performers, by so-called neighboring or related rights. As noted, similar rights have more recently been conferred on publishers, the makers of “databases,” and even producers of press publications.
Not conceptualized as protecting information, copyright instead holds as a key premise that it protects “works” understood as “expression,” typically on condition that the expression is in some (minimalist) sense “creative.” Indeed, a key premise of most contemporary copyright regimes is that the law protects expression but not ideas, information, or *facts as such. The Berne Convention itself states that it “shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information,” a sentiment that can be traced back to the treaty’s original text.
While copyright law may not protect information as such, there can be no doubt that, historically, copyright law has been an important mechanism for regulating the production of “works of information.” Indeed, although the requirement of minimal creativity today holds sway as the condition for copyright, for much of its history copyright regimes have offered sanctuary to productions, for example, almanacs, directories, maps, calendars, and compilations of laws. The 1790 US Copyright Act extended to “maps, charts and books,” the former subject matter clearly being prized for its informational accuracy. Looking back from the end of the nineteenth century, the British politician Augustine Birrell noted that the case law on “literary larceny” was made up chiefly of “disputes between book-makers and rival proprietors of works of reference, sea charts, Patteson’s ‘Roads,’ the antiquities of Magna Graecia, rival *encyclopedias, *gazetteers, guide books, cookery books, law reports, post office and trade directories, illustrated catalogues of furniture, statistical returns, French and German dictionaries, Poole’s farce, ‘Who’s Who?’ [and] Brewer’s ‘Guide to Science.’ ” The position was little different in France: of thirty-seven disputes over copyright between 1793 and 1814, twenty-one of them concerned what the scholar Jane Ginsburg classifies as “informational works.” Moreover, since 1948 the Berne Convention itself requires protection of encyclopedias, anthologies, and other compilations “which, by reason of the selection and arrangement of their contents, constitute intellectual creations.”
Although copyright laws mostly offer control over the form (“expression”) of a work rather than its informational content, in one obvious respect they seek to offer control over information, specifically information about “authorship.” The Berne Convention (since its Rome Revision in 1928) has required members to protect the moral rights of authors, including “attribution rights” (also known as “paternity” rights), and, as a condition for the availability of certain exceptions (such as quotation), requires that the authorship and source be acknowledged. These rights and obligations, historically almost always justified in terms of the natural rights of the “authors,” can equally be seen as critical components in a system of information norms, “authorship” being the dominant system for organizing cultural outputs, through catalogs, bibliographies, and thus “meta data” or—in recent terminology “rights management information” or *metadata.
While the practice of marking goods is ancient, less is known about the history of the legal protection of trademarks than that of copyright and patents. In England, it seems, some protection was available through *guilds or manorial courts, in particular sectors, from the sixteenth century. Moreover, it appears that from a similar time it was possible to bring proceedings for damages for misusing marks so as to deceive consumers though traders were able to obtain orders to prevent such behavior only from the early nineteenth century. By then, advertising through bills, posters, and newspapers had become common, initially for medical cures, but then also for boot polish, sauces, food, and drink.
With courts hearing increasing numbers of complaints as to deceptive use of the names or marks of competitors, attention turned to ways to make the system of protection simpler, quicker, and cheaper. Proceedings before civil law courts were often supplemented by criminal law regimes, allowing for quick if rough justice against “counterfeiters.” In France, a system of registration of trademarks was adopted at the beginning of the nineteenth century, and after the middle of the century such systems spread through the Anglo-American world—with the United States establishing a federal register in 1870 and Britain a comparable register in 1875. Such systems, in turn, gave rise to a specialist class of advisers—“trademark agents”—as well as workers employed to watch the register to ensure others did not seek protection for marks that might interfere with one’s own operations or plans.
Although the movement of goods across markets had long had an international dimension, as this became stronger so traders sought protection beyond their own shores. As with patents, bilateral arrangements were developed, but their effectiveness also required registration schemes. Protection of trademarks was included within the scope of the Paris Convention of 1883, and early in the twentieth century members of this convention committed themselves to offering protection also against unfair competition and similar deceptive practices.
The protection of trademarks was initially justified by reference to the harm caused to established traders from the unauthorized use of the same or similar marks to deceive purchasers. The core wrong—deception—was largely understood in moral terms. Comparisons were frequently made in the middle of the nineteenth century to fraud, forgery, and the counterfeiting of currency. However, as later scholars would observe, notions such as deception can easily be reconceptualized in terms of information: deception is the behavioral consequence of misrepresentation or misinforming. Indeed, trademarks were themselves frequently recognized to be vehicles for communicating information, particularly information about the origin or quality of the goods to which they were applied. In the final quarter of the twentieth century, trademarks came to be seen as valuable precisely because of their role in supplying the marketplace with information, the dominant account being that trademarks reduce purchaser “search costs.” As the economic and legal scholars Landes and Posner argued: “The value of a trademark is the saving in search costs made possible by the information or reputation that the trademark conveys or embodies about the brand (or the firm that produces the brand).… If the law does not prevent it, free riding will eventually destroy the information capital embodied in a trademark.” Trademark law is seen as conferring protection to trademarks because by doing so they enable traders to improve the quality of information in the relevant market, and thereby make the market more competitive.
Such an account, however, is not without its critics. One important mid-twentieth-century commentary sought to draw a line between informational and persuasive advertising: the protection of trademarks may well be socially beneficial in so far as it incentivizes traders to better inform consumers as to the properties and qualities of the goods; but protection is not needed in so far as trademarks were a vehicle for persuasive advertising to generate artificial desires and needs. Other critics recognized that trademark rights could be vehicles for reducing information available to consumers by privileging the trademark owner’s ability to shape its own message.
As with patents, trademark registration systems have distinct informational roles. In principle, they are supposed to offer traders a means of finding out about existing exclusive rights. This is achieved through a combination of representation of the mark and identification of a list of goods and services in relation to which a mark is used (or intended to be used). In the era of digitization, information about the use of signs by other traders is probably more easily accessed through the *internet than via the networks of trademark registers. In contrast with patents, no claims are made that the collecting of information about trademarks in a central register has other benefits, and some commentators have begun to express doubts as to whether the costs associated with these information systems are justified.
Lionel Bently
See also commodification; globalization; indexing; information, disinformation, misinformation; learning; public sphere; publicity/publication; reference books; registers; teaching