Part 1 - Towards a property in intangibles

Summary

We begin our exploration of intellectual property law with the debate over literary property that took place in Britain in the second half of the eighteenth century. This debate, which was ‘costly, prodigious and protracted’ and which was ‘discussed everywhere and by everybody’, turned on the status and nature of common law literary property. More specifically, the debate was prompted by the fact that the Stationers’ Company, whose power and control over the publication of books was being undermined, argued that, whatever the Statutes of the day may have said, at common law authors (and their assigns) enjoyed perpetual rights over their creations. While for some, such as Bentham, the discussions that this prompted were akin to an ‘assembly of blind men disputing about colours’, we believe that they provide us with a unique opportunity to understand both the categorisation of intellectual property law as well as the way in which the law granted property status to intangibles.

While modern intellectual property law did not emerge as a separate and distinct area of law until midway through the nineteenth century, the literary property debate, or at least aspects thereof, can be seen as the law struggling with the conflicting demands of pre-modern and modern intellectual property law. More specifically it became apparent during the course of the debate that the law believed that mental labour, which was to be the exclusive and unifying concern of intellectual property law, was fundamentally different from manual labour. At the over that of the body, we also see what in many ways was the first attempt to rationalise and order the various areas of law which granted property rights in relation to mental labour. Although the primary mode of reasoning was one of analogy between the subject-specific property rights that existed at the time, nonetheless this was the first occasion in which the shape of the law was openly and consciously discussed. In the first part of chapter 1 we utilise these arguments to explore the categories that were employed in pre-modern intellectual property law. In the second half of the chapter, we turn to focus on the question of the property status of the intangible in law.