Part 4 - Transformations in intellectual property law

Summary

While the second half of the nineteenth century was primarily a period of consolidation and entrenchment of the intellectual property law which had taken shape by the 1850s, it was also a period of transformation. Some of the changes which took place over this period were the inevitable consequence of the translation of aspiration into practice, while others came about as a result of the spread of ideas and techniques, such as the system of registration developed in the context of designs, to other areas of intellectual property law. Beyond the transformations which were produced by the processes of refinement and completion, a number of other important changes took place.

One set of changes, which we explore in chapter 8, relate to the nature of the relationship between the categories, that is to the way the categories were organised. Another important change was in terms of the way intangible property was perceived. In particular, while creativity and mental labour had long played a central role in various aspects of intellectual property law, over the second half of the nineteenth century the law shifted its attention away from these concepts to concentrate more on the object of protection itself. After charting the shift from ‘creation’ to ‘object’ in chapter 9, in chapter 10 we focus on the way intangible property was managed. In so doing we highlight not only the important role played by the registration system in the closure of intangible property, but also the positive role which registration played in managing intangible property. Towards the end of chapter 10 we look at some of the consequences that flowed from the closure of the subject matter, notably in terms of the way intellectual property law was explained and justified, as well as the role closure played in facilitating the gradual inclusion of trade marks into the rubric of intellectual property law. We thereby further draw attention to the interconnectedness of intangible property and the categories of intellectual property law. Although the nineteenth century saw the displacement of creativity and mental labour from the prominent position they had occupied in pre-modern intellectual property law, we end chapter 10 by arguing that although displaced, that creativity continues to play an important, albeit changed, role in modern intellectual property law.