intellectual property history

This page considers the history of intellectual property, in particular copyright.

It covers -

• introduction
• not dead, just smells that way?
• studies
• perspectives

     introduction 

Until recently there was little readily-accessible literature about the evolution of intellectual property as a concept or practice. That reflected perceptions that most major questions had been settled and that the antecedents of current law were only of interest to historians of law or those concerned with the 'rise of the author'. New technologies over the past twenty years have resulted in a wider interest in the origins of intellectual property and how it has changed to reflect evolving attitudes to authors and innovators (eg moral rights) and changing markets.

Unfortunately, much of the writing has been polemical and ahistorical, often based on misunderstandings about societies and economies or assumptions that what was appropriate in 1704 are desirable in 2004.

One example is recurrent reference to copyright or patents being a Jacobean monopoly - as quaint or iniquitous as witch-burning and periwigs.

Another is the often fetishistic reference in US debate to the intentions of the Founding Fathers, whose alleged squeamishness about copyright is praised as valid for all times and climes but whose attitudes to slavery, women or the lower orders are ignored.

A third example is recycling of the 'starving genius in the garret' image to justify billion dollar investment by and protection for corporations that employ thousands of people in creativity that is 'fordist' rather than the work of a solitary creator.

This page provides some pointers about the evolution of IP - in particular copyright - and highlights writing of special significance.

     not dead, just smells that way? 

Copyright has evolved over several centuries, keeping pace with

• changing ideas about creativity, incentives and respect for individuals
• new communications media and markets, from printed books to digital television broadcasts

Although it is currently fashionable to compose jeremiads about copyright as a tool for transnational conglomerates - or worse - intellectual property is as much a matter of individuals. It may involve recognition rather than remuneration.

Australian copyright law essentially derives from the 1710 'Statute of Anne', which replaced the licensing of books and other publications with a regime that differentiated between ideas (free) and the expression of those ideas (protected by the state for a finite period to provide an incentive for creativity and investment in printing/distribution).

That differentiation reflected John Locke's 1690 Two Treatises on Civil Government, in which the philosopher argued that authors had a natural right in their work because they had expended labour in creating it and that public dissemination of knowledge was necessary for civil society.

Although US legal thinking has traditionally been dismissive of copyright as a natural or human right (droit d'auteur or Urhebergerecht), acceptance of the Berne convention - discussed later in this guide - means that Anglo-American utilitarian copyright philosophy has increasingly converged with a Continental respect for the moral rights of the author.

Literary historian John Sutherland characterised the 1710 Act as "a beautiful law", a

brilliant and amazingly durable piece of lawmaking, requiring a sophisticated conception of what constitutes creative work or product of the mind. What was protected as private property by the new law, for a term of years, was a notional, or Platonic, essence of the book.

A 1793 French law specified that works of living authors could not be performed in a public theatre without the author's assent and that the heirs had the same rights for five years after the author's death. Jean Le Chapelier had roused the Paris Assembly in 1791 by arguing that

the most sacred, most personal of all the properties, is the work fruit of the thought of a writer [...] so it is extremely just that the men who cultivate the field of thought enjoy some fruits from their work, it is essential that during their life and a few years after their death, nobody can dispose of the product of their genius, without their consent.

US lawyer Zechariah Chaffee echoed that comment in his 1945 Reflections on the Law of Copyright, saying that

intellectual property is, after all, the only absolute possession in the world ... The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property.

The regime has proved quite durable over the past three hundred years, outlasting alternative arrangements such as the Ancien regime privileges system and and communitarianism. It offers a balance between individual rights regarding the property of the mind and its embodiment, freedom of thought and the interests of the state.

Authors advocate CISAC thus proclaims that

The authors of literary, musical, artistic and scientific works play a spiritual and intellectual role in society which is to the profound and lasting benefit of humanity and a decisive factor in shaping the course of civilisation.

As later pages of this guide note, the regime has been recurrently amended through new legislation, codes of practice and court decisions that have

• extended its coverage (eg accommodating new technologies such as photography and broadcasting),
• reflected increasing globalisation of markets (in particular through bilateral and multilateral copyright agreements) and
• sought to ensure appropriate access by consumers

The latter category embraces entities ranging from journalists and individual scholars through to film producers and television broadcasters. Michael Chanan sniffed that

The history of copyright is the history of mounting contradictions in the legal superstructure, as the changing forms of cultural production altered the social relations of the author, who gradually became a new kind of intellectual worker (a shift which relatively few of them recognised until after Schiller and Marx). From the intellectual worker there has now descended the alienated mental worker whom Schiller and Marx foresaw; from the critical consciousness of the artist and the scientist, there have descended the programme producer and the computer programmer

     studies

Martha Woodmansee's The Author, Art & the Market (Cambridge: Cambridge Uni Press 1996) highlights its flowering in the "romantic notion of the author" in conjunction of developments in printing and distribution that meant some creators did not need to depend on handouts or who were solely motivated by gloria et fama, disdaining money. Authors were sovereign individuals whose creativity and dedication should be encouraged and emulated, rather than treated as mere conduits from the divine creator and thus undeserving of recognition.

Carla Hesse's succinct The Rise of Intellectual Property (PDF), Christopher Witcombe's Copyright in the Renaissance: Prints and the Privilegio in Sixteenth-Century Venice & Rome (Leiden: Brill 2004), Katharina de la Durantaye's 2007 paper Origins of the Protection of Literary Authorship in Ancient Rome, Lisa Pon's Raphael, Dürer and Marcantonio Raimondi: Copying & the Italian Renaissance Print (New Haven: Yale Uni Press 2004), Elizabeth Armstrong's Before Copyright: The French Book-Privilege System 1498-1526 (Cambridge: Cambridge Uni Press 2002) and Ronan Deazley's On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain, 1695-1775 (Cambridge: Hart 2004), Oren Bracha's persuasive 2006 paper The Ideology of Authorship Revisited, Marc Suchman's 1989 'Invention and Ritual: Notes on the Interrelation of Magic and Intellectual Property in Pre-Literate Societies' in 89 Columbia Law Review 1264 (PDF) and William Alford's To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilisation (Stanford: Stanford Uni Press 1995) offer other insights from western and eastern traditions.

Paul Goldstein's Copyright's Highway: The Law & Lore of Copyright from Gutenberg to the Celestial Jukebox (New York: Hill & Wang 1994) provides a short and easily digested introduction to copyright as law, philosophy and practice from the US perspective. There is a broader view in Peter Drahos' lucid The Universality of Intellectual Property Rights: Origins & Development (txt), Goldstein's International Copyright: Principles, Law & Practice (New York: Oxford Uni Press 2001) and William Cornish's Intellectual Property: Omnipresent, Distracting, Irrelevant? (London: Oxford Uni Press 2004). Stephen Ladas' Patents, Trademarks & Related Rights: National & International Protection (Cambridge: Harvard Uni Press 1975) complements Goldstein.

Lawrence Lessig, former Berkman Professor for Entrepreneurial Legal Studies at Harvard Law, is a leading proponent of the view that emerging technologies mean that the protection of IP in the virtual world may be stronger than offline.

So much for the mantra that if copyright is not dead, it certainly smells that way. His Code & Other Laws Of Cyberspace (New York: Basic Books 1999) is an elegant exposition of his concerns. There is a companion site. Lessig's The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random 2001) and Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: Penguin 2004) are more polemical. They are complemented by Neil Netanel's 'Why Has Copyright Expanded? Analysis and Critique' in 6 New Directions in Copyright Law (Cheltanham: Elgar 2008) edited by Fiona Macmillan and Copyright's Paradox (Oxford: Oxford Uni Press 2008).

Pamela Samuelson's 1991 paper on Digital Media & the Law in the 1991 Communications of the ACM and her more recent article, in the 1999 California Law Review, on Intellectual Property & Contract Law For The Information Age complement Lessig and Goldstein. Among other publications she critiqued US proposals for what became the DCMA in The Copyright Grab, a characteristically biting article in January 1996.

Jessica Litman's Digital Copyright (Amherst: Prometheus 2001) is a valuable - although we think overstated - argument by one of the more feisty US academics. It has a companion site. Her 1996 Oregon Law Review paper on Revising Copyright Law For The Information Age argued that digital technology has made 'reproduction' untenable as a basis for copyright law .... but the corpse refuses to die.

     perspectives

There is, alas, no authoritative history of copyright and industrial property law in Australia or at a global level.

Benjamin Kaplan's An Unhurried View of Copyright (New York: Columbia Uni Press 1968) is a succinct history of US copyright law. The Illustrated Story of Copyright (New York: St Martins 2001) by Edward Samuels is a more recent account. Online you can consult William Fisher's 1999 essay on A History of the Ownership of Ideas in the US. Fisher's provocative Promises to Keep: Technology, Law and the Future of Entertainment (Stanford: Stanford Uni Press 2004) is of interest.

Lyman Patterson's Copyright In Historical Perspective (Nashville: Vanderbilt Uni Press) has a wider scope, as does Bernard Edelman's Ownership of the Image: Elements for a Marxist Theory of Law (London: Routledge 1979) and David Saunders' Authorship & Copyright (London: Routledge 1992).

Bruce Bugbee's The Genesis of American Patent & Copyright Law (Washington: Public Affairs 1967) offers a perspective on hype about the intentions of the US founding fathers, further discussed in Jane Ginsburg's 2001 'The Exclusive Right to their Writings': Compensation v Control in the Digital Age (PDF) and Marci Hamilton's The Historical and Philosophical Underpinnings of the Copyright Clause (PDF).

Hillel Schwartz's The Culture of the Copy (New York: Zone 1996) explores western ideas about originality, value and authenticity. Despite the title, offers valuable insights into both western and eastern perceptions of creativity, the marketplace and intellectual property law.

The Making of Modern Intellectual Property Law (Cambridge: Cambridge Uni Press 2000) by Brad Sherman & Lionel Bently concentrates on the UK and the US in the period before 1900. It is a detailed but engaging study of why IP law, particularly copyright, is so complex and why a systematic improvement seems unlikely.

It complements the elegant Authors and Owners: The Invention of Copyright (Cambridge: Harvard Uni Press 1993) by Mark Rose, Catherine Seville's Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge Uni Press 1999) and The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge: Cambridge Uni Press 2006), Michael Carroll's 2005 The Struggle For Music Copyright paper and The Construction of Authorship: Textual Appropriation in Law & Literature (Durham: Duke Uni Press 1994), a collection of essays on copyright theory, broadcasting, piracy, contracts, music sampling and other matters, edited by Martha Woodmansee & Peter Jaszi.

Jane Gaines' Contested Culture: The Image, the Voice, and the Law (Chapel Hill: Uni of North Carolina Press 1991) and Paul Geller's Copyright History & the Future: What's Culture Got to Do With It? (here) are also recommended.

Sherman, with Alain Strowel, had earlier edited a set of essays on theory and practice in Of Authors & Origins: Essays in Copyright Law (Oxford: Clarendon Press 1994), and co-edited From Berne To Geneva: Recent Developments In International Copyright & Neighbouring Rights, papers from the 1997 by the Australian Key Centre for Cultural & Media Policy at Griffith University.

For the early modern period many studies of print and culture embrace the emergence of the rights of authors, printers and publishers. Apart from Elizabeth Eisenstein's landmark two volume work The Printing Press As An Agent Of Change: Communications & Cultural Transformation in Early-Modern Europe (Cambridge: Cambridge Uni Press 1979) we recommend Adrian Johns' The Nature Of The Book: Print & Knowledge In The Making (Chicago: Uni of Chicago Press 1998)

Among studies of authors and the fight for copyright Pegasus In Harness: Victorian Publishing & W M Thackeray (Charlottesville: Uni Press of Virginia 1991) by leading US editor Peter Shillingsburg, Aubert Clark's The Movement for International Copyright in 19th Century America (Westport: Greenwood 1973) and Simon Novell-Smith's International Copyright Law & the Publisher in the Reign of Queen Victoria (Oxford: Clarendon Press 1968) are particularly illuminating.


   next page  (IP in Australia)