Part 2 - The emergence of modern intellectual property law

Summary

The early nineteenth century was an important period in the development of the British law which granted property rights in mental labour. As well as witnessing the beginnings of the administrative and legal reform of patent law, a number of unsuccessful attempts to introduce a general Law of Arts and Manufacture, and a resurgence of concern with the duration of literary property, it also saw proposals to extend existing rights to analogous subject matter, the development of bilateral literary property agreements, and the first treatises and digests to focus exclusively on this area of the law. While these changes all played an important role in shaping modern intellectual property law, we will concentrate on the series of reforms which took place from 1839 to 1843 in what we would now call design law.

Given that the design legislation enacted at the time stands at the conjunction of pre-modern and modern intellectual property law, it is unsurprising that it proved to be important not only in the formation of modern design law, but also in that of intellectual property law more generally. We see during this period the development not only of many of the salient features of modern design law but also of modern intellectual property law and, more specifically, the emergence of two important features of modern intellectual property law. First, with the establishment of the Designs Register the first modern system of registration for intellectual property came into being. One of the notable aspects of this new mode of registration was that proof was rendered a matter of public rather than private control. At the same time, we also see the first concerted efforts to regulate intangible property by bureaucratic means.

Secondly, with the reforms that took place in the 1840s the law became increasingly interested in the aesthetics of law; in the shape that the law itself took. In this we see the first moves towards the formation of the modern mode of organisation which, in contrast to the subject-specific and reactive nature of pre-modern law, was abstract and forward looking. The process of abstraction was a crucial stage in the development of a design law and the categorisation of mental labour more generally.