6 - Completing the framework

Summary

The first half of the nineteenth century was, as we have seen, a particularly important period in the development of modern intellectual property law. It was a formative era which saw the crystallisation of the legal categories and of many of the attributes commonly associated with this area of law. Although by the 1850s intellectual property law had taken on a form recognisable to modern eyes, it still had a fragile and precarious existence: however important the developments which had taken place by this time may have been, they were only an initial step towards the formation of modern intellectual property law - the beginning of a process which was not completed until early this century. Indeed, it was not until the passage of the 1911 Copyright Act, which codified and rationalised the pre-existing law, that it can safely be said that the emergent field was transformed into an established area of law, that intellectual property law had become an entrenched part of the legal tradition. It is our aim in this chapter to focus on this period of consolidation and entrenchment (1860-1911): a time in which gradually, haphazardly and following no particular logic, the categories of modern intellectual property came to take on an institutional reality. More specifically we focus on the fact that, in order for the legal rubrics to acquire their contemporary status as natural categories which reflected some higher philosophical order, it was necessary for a number of obstacles to be overcome. This was particularly the case with patents and copyright.

Trusting patents

While by the middle of the nineteenth century copyright and design law were widely regarded as positive mechanisms which protected valuable and deserving subject matter, the patent system was held in a different light. After a brief period in which patents found favour, widespread doubts developed about the worth of a patent system at all. In the 1860s, when hostility towards patents was at its peak, this manifested itself in calls for the abolition of the patent system. There were many reasons for doubting the legitimacy and usefulness of the patent system at the time. On one level the anti-patent arguments were fuelled by a growing support for laissez-faire ideas and the reforms taking place in other countries.