The Making of Modern Intellectual Property Law: The British Experience, 1760-1911 (review)

The Making of Modern Intellectual Property Law: The British Experience, 1760-1911. By Brad Sherman and Lionel Bently. Cambridge: Cambridge University Press, 1999. Pp. xx+242; notes/references, bibliography, index. $69.95.

Historians of technology should be warned that this volume has been written primarily for lawyers, with the intention of improving their understanding of present-day intellectual property law. As the authors are at pains to emphasize, "our primary interest lies in what could be called the doctrine of intellectual property law" (p. 2). They aim to provide a historical explanation for the shape that the modern British law has assumed since its emergence during the mid-nineteenth century and, in particular, for its categorization into copyright, patents, designs, and trademarks. It is a story purposely dominated by historical contingency and pragmatism; nonetheless, it is essentially a study of ideas, and, as such, it may interest historians of patenting and design. They will also find a useful table of statutes and bills spanning the period 1335-1912 and a fairly inclusive bibliography of works on intellectual property (broadly defined), although they will look in vain for an account of the contents and implications of particular statutes.

Brad Sherman and Lionel Bently root their account in the literary property debate of the late eighteenth century, which raised the question of whether authors should enjoy a perpetual common-law copyright; the debate spilled over into other areas of intellectual property, both artistic and technical. They suggest that by the 1780s the idea of intangible property was widely accepted, even if the legal problems it raised were far from resolved and its encoding in statute law was delayed until the mid-nineteenth century. Particularly difficult was the question of how far the originator's protection against identical copies of his or her text, invention, or design should extend to nonidentical variants or similar "copies." This required the law to move into abstractions and "the shadowy ephemeral world of the essence of the creation," where there would be endless scope for dispute: "With this single gesture, . . . perhaps the most important that took place in this area in the eighteenth century, intellectual property law was set on a course from which it has been unable to escape" (p. 56). Concerning categories, if a patent secured only a temporary property in an invention (a mere fourteen years), how was perpetual copyright in a literary work to be justified? Proponents rested their claim on the amount of mental (as distinct from manual) labor inherent in any creative work: a book was said to embody a significantly higher proportion than a mechanical invention. By the same token, in the 1840s designs were allocated an even shorter term.

This debate was revived during the "patent controversy" of the third quarter of the nineteenth century, this time with the future of the patent system at stake. As Sherman and Bently recognize, defenders of patents sought to identify technical invention as a unique creative process strictly analogous with literary invention: "Watt may be said to have created his particular steam-engine in the same sense that Milton may be said to have created Paradise Lost" (p. 150). Abolitionists queried this comparison: if not Watt, then somebody else would have "discovered" (rather than "invented") his steam engine, for discovery progressed according to its own logic, the individual playing little part. The authors argue that, while the abolitionists failed in their ultimate goal, "they helped to transform the legal image of the invention . . . [into] a discovery which could be unearthed by any number of inventors" (p. 152).

This is prima facie a surprising claim and one for which the authors provide no evidence, citing only the abolitionists' own arguments, from their propaganda and their testimonies to parliamentary select committees--where they were always in the minority. The abolitionist cause was waged largely by self-interested sugar refiners, led by the...