March 4, 2015

The Development of English Intellectual Property Law

Laura R. Ford, The Baldy Center for Law & Social Policy, has published Prerogative, Nationalized: The Social Formation of Intellectual Property. Here is the abstract.

In this article, I offer a “social formation story” (Hirschman & Reed) of the emergence of intellectual property, as a new type of legal property in England. I treat the history of patents and copyrights together, and focus especially on the Constitutional transformations of the Sixteenth and Seventeenth Centuries that enabled this new, “intellectual” form of property to finally emerge in the Eighteenth Century. I open and conclude with the cases of Millar v. Taylor (King’s Bench 1769) and Donaldson v. Becket (House of Lords 1774), viewing these as the first cases in which the status of this new type of property, under England’s Common Law system, was fully considered. Drawing especially on Lord Mansfield’s arguments in Millar, I argue that intellectual property emerged through a process of nationalization. In this process, elements of the Crown Prerogative were appropriated by Parliament and transformed into the property of English subjects. Through the course of the narrative, I show the extent to which this nationalization process was dependent upon the Henrician Reformation and Protestant religious commitments. In conclusion, I briefly draw out the potential implications of this perspective for contemporary debates over the legitimacy of intellectual property.

Download the paper from SSRN at the link.

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