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November 10, 2021 IP in history

IP in the 19th century


 

Creativity is in our DNA. From early cave paintings, to the Works of DaVinci, Michelangelo, Mozart and Bach, humans have always found ways to express creativity.

Over the next several weeks we will delve into the history of IP, from ancient times to the middle ages and up to the modern day. We will trace how as a society, we have strived to protect that which we create.

This series of articles, each focused on a specific period of time, will take a close look at the lengths taken to protect what we now call, Intellectual Property.

During the 18th century, ideas around IP started to change. Our understanding today of IP ‘rights’ rather than ‘privileges’ granted by a monarch or ruler, emerged, notably through legislation like the 1624 Statute of Monopolies and 1710 Statute of Anne in England, and the 1787 Constitution of the United States of America. Throughout the 19th century this process of evolution continued and what we call intellectual property (IP) today continued to be shaped and developed.

Throughout the 1800s, several countries around the world issued their own IP statutes, which clearly understood IP as legal rights granted by law. What’s more, the legislation and case law of the time introduced innovations that are still part of the IP system today. To take just one example, did you know that it was not always a given that photographs could be protected by copyright?

It was also during this period another important idea emerged to do with how IP is functional to building relationships between countries and cultures? Indeed, during the 1800s, the first international IP instruments were adopted, some upon decisive input from the celebrities of that time.

Let’s find out what happened and who made all this possible!

IP developments of the 19th century and their legacy today

The IP statutes and case law issued during the 1800s introduced notions and requirements under IP law, which are still valid – in their core essence – still today.

For example, the 1842 Copyright Act adopted in the United Kingdom considered copyright as personal property and stated that the duration of protection would cover the life of the author of a work plus a few years after their death. Today, in the European Union, copyright is protected as a fundamental right within the right to property and its duration covers the life of the author of a work and 70 years after their death.

In 1875, the United Kingdom also introduced its first ever trade mark statute (the Trade Mark Registration Act) and, from the following year, it became compulsory to submit a representation of the logo that one sought to register as a trade mark to the Patent Office. Still today, registration of a trade mark requires an application that contains a representation – in any appropriate form – of the trade mark applied for.

In 1884, the US Supreme Court had to decide whether an iconic photograph of Oscar Wilde could enjoy copyright protection, the main issue being whether the ‘objects’ created through the then novel medium of photography would be deserving of the same protection as, for example, paintings. The court eventually answered ‘yes’, and as they say, the rest is now history. Today, there is no question that photographs, including portrait photographs, may be protected under copyright law.

IP protection goes international

During the 1800s, the first international IP instruments were also adopted. In 1883, it was the turn of the Paris Convention, which applies to industrial property (including patents, trade marks, and designs). For the first time, this convention introduced the principle that it would from then on be the obligation of any participating country to protect the rights of non-nationals in the same way as the rights of its own nationals.

The same principle of national treatment also found its way into the Berne Convention, the first international copyright instrument. At that time, celebrity authors like Victor Hugo were the victims of massive ‘piracy’ of their books in certain countries, which did not protect works by non-nationals. Hugo had a decisive role in the adoption of the Berne Convention in 1886. Similarly, Charles Dickens’ US tour saw him effectively lobbying the US Congress to change the country’s copyright law and protect foreign authors.

A few years later, the precursor of today’s World Intellectual Property Organization, the United International Bureaux for the Protection of Intellectual Property (BIRPI), was established to administer both these conventions.

Towards the close of the century, in 1891, the first international trade mark instrument was also adopted: the Madrid Agreement established a system whereby with one single application you could seek to register your trade mark in multiple territories around the world.

Modernisation and internationalisation as the cornerstones of IP in the 19th century

During the 1800s, IP was characterised by two key features: modernisation and internationalisation.

Through the former, the understanding of IP as conferring ‘rights’ gained further consolidation. In addition, several key features of today’s IP rights, which became common practice, such as how a photograph is protectable by copyright or how a trade mark registration requires representation of the sign applied for. Through internationalisation, the various legal systems became increasingly homogeneous, therefore creating a more level playing field for the protection and exercise of the rights granted under IP law.

As we will see, both these features developed further during the 20th century … Stay tuned!


 
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