8 - Changes in the framework

Summary

Industrial property law

As modern intellectual property law emerged in the 1850s, patents, designs and copyright law were given more or less equal weighting. By the 1880s, however, there was an important change in the way the categories were organised. In particular, there was a growing tendency to divide intellectual property law into two classes: into copyright, on the one hand, and industrial property (designs, patents and increasingly trade marks) on the other. While it was sometimes asserted that industrial property was an alien (typically French) concept, it had important precedents in British law. In particular, it could be seen as continuing the short-lived trend towards a Law of Arts and Manufacture which took place in the 1830s. The separation of copyright from the other categories of intellectual property also reflected the idea that copyright was for art and not trade.

Although the idea of industrial property had antecedents in the early history of the subject, it took on a more prominent and influential role in the later half of the nineteenth century. As well as quickly becoming an accepted part of the legal language and shaping the way bibliographies were organised, the industrial property-copyright bifurcation also played an important role in the realignment of the administrative infrastructure of intellectual property law. In particular, it was an important factor in the consolidation of designs, trade marks and patents under the authority of the Comptroller of Patents: a process which began in 1875 and was completed with the passage of the 1883 Patents Designs and Trade Marks Act. The division of intellectual property into two domains was reinforced by international developments: notably the passage in the 1880s of the (1883) Paris Convention - industrial property - and the (1886) Berne Convention - literary and artistic works.

Even as these changes were occurring, moves were taking place which prompted and ultimately undermined the industrial property logic. After a brief period in which industrial property acted as a key organising concept, the early part of the twentieth century saw a return to the relative autonomy that had prevailed between the categories in the middle part of the century. The shift away from what was increasingly seen as the ‘purely artificial’ idea of industrial property was typified by the 1899 Trade Marks Bill which set out to dissociate trade marks from patents and designs.