Brennan on Publication in the History of Patents and Copyright: Harmony or Happenstance?

David J. Brennan, University of Technology Sydney, Faculty of Law, has published Publication in the History of Patents and Copyright: Harmony or Happenstance? in Across intellectual property: essays in honour of Sam Ricketson edited by Graeme Austin, Andrew Christie, Andrew Kenyon, Megan Richardson (Cambridge University Press, 2020). Here is the abstract.

Aspects of patent and copyright law might be better understood by a greater appreciation of a shared history between patent and copyright law. Such an appreciation leads to the recognition that, ostensibly, the resolution of the question of literary property could have sparked a reshaping of patent doctrines in the late 18th Century, and that in turn those patent doctrines could have had a reciprocal influence upon an important aspect of English copyright law of the 19th Century. While these connections are speculative, when patent history and copyright history are put in overlay, the connections emerge as plausible ones.

Download the chapter from SSRN at the link.

Swanson on Race and Selective Legal Memory: Reflection on "Invention of a Slave" @KaraWSwanson @ColumLRev

Kara W. Swanson, Northeastern University School of Law, is publishing Race and Selective Legal Memory: Reflections on Invention of a Slave in volume 120 of the Columbia Law Review. Here is the abstract.

In 1858, the United States Attorney General issued an opinion, Invention of a Slave. Relying on the Supreme Court’s recent declaration in Dred Scott v. Sandford that African Americans were not citizens, he created a formal racial barrier to the patent system, declaring inventions by all African Americans, enslaved and free, unpatentable. Within a few years, legal changes that overruled Dred Scott and abolished the law of slavery rendered the opinion obsolete. This brief opinion became, as far as lawyers and legal scholars were concerned, forgotten. Unlike many overruled opinions dropped from the legal canon, however, Invention of a Slave and the associated story of an enslaved blacksmith who invented an innovative plow have been continuously remembered. Women and men committed to fighting the legacy of slavery maintained both in the collective memory of those seeking full civil rights for African Americans. Our legal forgetting was an act of persistent blindness to their efforts and publications. This Essay excavates the generations of African American writers and activists who have worked to remember the opinion and argues that legal forgetting has carried a cost. Their remembering was not casual storytelling but rather deliberate, strategic, and political. I offer Invention of a Slave as a case study of race and selective legal memory, tracing an unacknowledged color line that demarcates legal memory and the costs of that line. Because of our forgetting, the opinion appears as an obscure part of the antebellum past. When we understand their remembering as a political act, we can see what they have always seen: There is a connection between the patent system and the legal and social definition of citizenship. At a time when the boundaries of citizenship and the contours of who is worthy to be considered an American are hotly contested in ways related to race and ancestry, learning from those who remembered Invention of a Slave offers lessons that link this piece of the past to our present and future, with implications both for the patent system and for our on-going conversation about race, equality, citizenship and the laws that affect them.

Download the article from SSRN at the link.

Scardamaglia on A Legal History of Lithography @abscard @GriffLawSchool

Amanda Scardamaglia, Swinburne Institute of Technology, has published A Legal History of Lithography at 1 Griffith Law Review 1 (2017). Here is the abstract.

Charles Troedel (1835–1906) was a master printer and lithographer and founder of the firm Troedel & Co. He was also the forgotten face behind the production of much of Australia’s earliest existing and surviving advertising material including posters, labels and other visual ephemera. These works, many of which were registered for colonial copyright and trade mark protection, provide a graphic history of nineteenth-century Australia, speaking to the prevailing state of commerce, culture, social trends and colonial norms. Inexplicably, Troedel’s role in the production of this capsule history has been overlooked. The legal dimension to this history and the relationship between lithography and intellectual property law has also been overlooked – in terms of the stylistic evolution of commercial signifiers and the legal mechanisms which served to protect these graphical expressions. This article uses Troedel’s archive of lithographs as the proxy through which to examine how lithography facilitated and shaped the production of early copyright and trade marks in Australia and more specifically, how lithography, as the technological arrangement mediating early colonial Australian society, was responsible for transforming advertising in nineteenth-century Australia, and the legal categories under which such advertising was defined.

Download the article from SSRN at the link.

McCutcheon on The Misconception of Literary Characters as Copyright Works @UWALawSchool

Jani McCutcheon, University of Western Australia Law School, is publishing Works of Fiction: The Misconception of Literary Characters as Copyright Works in the Journal of the Copyright Society of the USA. Here is the abstract.

This article critiques US jurisprudence, commentary and industry practice suggesting that fictional literary characters constitute separate copyright works distinct from the literary works in which they are situated. The scholarship on this jurisprudence tends to lament the ambiguity of the courts’ character delineation standards, and the inconsistency of court decisions applying them, but rarely, if ever, questions the legitimacy and coherence of the character-as-work doctrine. The paper will argue that the doctrine is fundamentally misconceived. It evolved from the fragile foundation of a casual obiter comment in an infringement analysis and morphed confusedly into an entrenched, though misunderstood, principle. The article will explain the unstable foundation of the character-as-work doctrine with reference to the concept of a ‘work’ in copyright law and its relationship to the fixation doctrine. The article argues that the nature of literary characters precludes them from being clearly and consistently identified and thus perceptible in a copy for the purposes of fixation. It explains how the character-as-work doctrine ignores the nature of literary characters; confuses subsistence standards; fosters illusory rights, rights hyperextension and lazy infringement analyses; and encourages character ‘evergreening’ beyond the copyright term.

Download the article from SSRN at the link.

Shabalala on IP, Traditional Knowledge, and Traditional Cultural Expressions In Native American Tribal Codes @Dyebo

Dalindyebo Bafana Shabalala, University of Dayton School of Law, CWRU School of Law, Maastricht Faculty of Law, is publishing Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes in volume 51 of the Akron Law Review (2017). Here is the abstract.

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in the broader territory of the United States, this Article argues that a necessary condition for success may be ensuring such protection on their own tribal territory. This Article serves as an early contribution to a broader research agenda aimed at providing more data as a basis for tribal claims for protection of their traditional knowledge and traditional cultural expressions. It presents a survey of the nature and scope of legal and formal protection that tribal legislation in the United States has provided for traditional knowledge and traditional cultural expressions. It further surveys and analyzes the nature and scope of protection provided under federal law and assesses the gap between what tribal codes provide and what federal law provides. It then proposes a series of next steps as a research agenda.

Download the article from SSRN at the link.

Drink Up! Frye on a Legal History of the Bacardi Cocktail @brianlfrye

Brian L. Frye, University of Kentucky College of Law, has published 'It's Your Right…!': A Legal History of the Bacardi Cocktail. Here is the abstract.

In 1936, the Bacardi Company filed a trademark infringement action in New York state court against two New York bars for serving Bacardi cocktails made without Bacardi rum, and the court granted an injunction. For years afterward, the Bacardi Company used the ruling in its advertisement, proclaiming, "It's your right!" to expect Bacardi rum in your Bacardi cocktail. This article provides a legal history of the Bacardi cocktail and the Bacardi Company's trademark infringement action. An appendix provides a list of historical recipes for the Daiquiri and Bacardi cocktails.

Download the article at the link.

Davies on A Grand Game Introduction, or the Rise and Demise of "Sherlock Holmes"

Ross E. Davies, George Mason University Law School; The Green Bag, has published A Grand Game Introduction, or the Rise and Demise of 'Sherlock Holmes' at 2 The Newspapers 25 (2018). Here is the abstract.

On April 12, 1904, “Sherlock Holmes” became a registered trademark of Parker Brothers, one of the biggest makers of card games, board games, and the like in the United States. Of course, that did not mean that Parker Brothers controlled the great man’s name outright. Rather, it meant the U.S. Patent Office had granted the company the right to use the name in the category of “games played with cards.” According to the official report of the registration, Parkers Brothers had been using the words “Sherlock Holmes” in connection with “games played with cards” since February 15, 1904. To the best of my knowledge, that settles the incept date of the first Sherlockian game. (A few days later, Parker Brothers also completed its copyright registration of “Rules for the playing the game of Sherlock Holmes.”) “Sherlock Holmes” suffered a quick fade, at least when compared to some of its contemporaries in Parker Brothers product line. (“Rook” for example, was introduced in 1906 and is still popular today, while “Ping-Pong,” introduced in 1902, has become a generic term for table tennis.) Why was “Sherlock Holmes” so short-lived and then so thoroughly forgotten? Here are two possibilities to consider. First, Parker Brothers may have run into intellectual property problems, despite its trademark and copyright registrations. Second, maybe “Sherlock Holmes” turned out to be a not-very-grand game. Indeed, its defects may well have been obvious to its creators from day one, or close to it. Parker Brothers completed its copyright registration of “Rules for the playing the game of Sherlock Holmes” on April 18, 1904, and a mere five months later the company was back, copyrighting “improved” rules for the game on September 23. This despite the fact that George Parker, the chief game developer for the company, “still played every Parker game over and over again himself, with employees, family and friends to make certain that every wrinkle was ironed out, that confusion was eliminated and that “actual playing qualities” were excellent. Even though he was the very busy head of a good-sized business, he personally wrote the rules for every game the company produced, working over them evening after evening to clarify and simplify them.”

Download the article from SSRN at the link.

Oguamanam on Traditional Knowledge and the "Public Domain" Revisited @Chidi_Oguamanam @

Chidi Oguamanam, University of Ottawa, Common Law Section, has published Wandering Footloose: Traditional Knowledge and the 'Public Domain' Revisited at 2018 JWIP 1. Here is the abstract.

Ongoing interdisciplinary theoretical interests over the “ownership of culture” is a complex conversation that has pitched traditional knowledge (TK) and its holders against other knowledge systems in a manner that implicates significant power relations and plural philosophical orientations over the governance of knowledge. Nowhere is the pressure on TK more pronounced than in the new- found interest of the United States and its allies over the public domain, as evident in the work of the WIPO's special committee charged with negotiating sets of legal instruments for effective protection of TK, genetic resources, and folklore (a.ka. traditional cultural expressions). TK stakeholders are put on the defensive on the assumption that effective protection of TK would undermine the public domain. Ironically, led by the United States, countries who worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain have now reconstituted themselves into its later day champions when it comes to TK. However, it is not as if the Indigenous and local community custodians of TK have no approximation of the public domain in their customary laws, practices and dealings with knowledge production. There has yet to be an interest in non-Eurocentric conceptions of the public domain. Such an interest presents an opportunity to revisit the public domain imperative in order to adumbrate an inclusive and multicultural jurisprudence of the phenomenon.

Download the article from SSRN at the link.

Birnhack on Colonial Intellectual Property @Birnhack @TAU_Law

Michael Birnhack, Tel Aviv University, Buchmann Faculty of Law, is publishing Colonial Intellectual Property in Handbook on Intellectual Property Research (Irene Calboli, and Maria Lilla' Montagnani, eds., Oxford University Pres, 2019). Here is the abstract.

Most of the literature on Intellectual property (IP) legal history focuses on Western IP norms and ideas, especially British, American, and former British colonies. This chapter, to be published in the OUP Handbook on IP Research, adds some critical questions, in the context of imperialism and colonialism, namely, a post-colonial view of IP in a colonial context. As the Empires of the late 19th century and early 20th century, especially the British Empire, extended their global reach, they applied their own IP law in the new territories they controlled. They did so first and foremost for their own benefit. The imposition of a foreign, external law onto a local population, might have resulted in conflicts. Thus far, most IP history was told from the colonizers’ perspective. The paper argues for the inclusion of the colonized perspective, and offers a conceptual research framework. Colonial IP lies at the intersection of (1) a critical approach to legal transplants that views it as a process and interaction of foreign law and local laws and norms; (2) applied in a colonial setting; and (3) taking into account IP’s unique features. This framework provides an organizing structure for the study of IP history in a colonial context. It offers a critical stance that is aware of the multiplicity of voices, and builds on lessons from the study of law and society about gaps between the law in the books and the law in practice, about the social construction of the law, and the powers at stake. It enables us to be skeptical of the official history, which was typically told or mediated by the colonizers. This is a post-colonial approach to IP. The chapter begins with the separate ingredients of the proposed framework, and then integrates them together and discussed its challenges and pitfalls. Along the discussion, I bring some examples, mostly from on copyright and trademark law in Mandate Palestine (1922-1948).

Download the article from SSRN at the link.

Block That Romance Fiction Sports Reference!

In case you missed it, sports team owners need to move quickly if they want to name their franchises something catchy. Otherwise they might find that they've been pre-empted by someone else--say, a romance novel writer.

Seattle is currently contemplating bringing an NHL expansion team to town, and of course that team will need an exciting name. But which one? A number are under consideration,  but might be difficult to use, because they have other connotations. The "Seattle Kraken" sounds pretty fierce, but haven't we heard about Kraken somewhere before? And the "Seattle Sockeye"? Well, as it turns out, there is a Seattle Sockeye hockey team already, but it exists in the pages of writer Pamela Bowerman's romance novels.  Ms. Bowerman has applied for a trademark to protect her fictional team. Goal?

Maybe we'll be hearing about the "Seattle Seafarers"?

Neil Netanel, From Maimonides To Microsoft (OUP, 2018) @OUPAcademic @NeilNetanel

New from Oxford University Press: Neil Weinstock Netanel, UCLA, has published From Maimonides To Microsoft: The Jewish Law of Copyright Since the Birth of Print (2018). Here from the publisher's website is a description of the book's contents.

Jewish copyright law is a rich body of jurisprudence that developed in parallel with modern copyright laws and the book privileges that preceded them. Jewish copyright law owes its origins to a reprinting ban that the Rome rabbinic court issued for three books of Hebrew grammar in 1518. It continues to be applied today, notably in a rabbinic ruling outlawing pirated software, issued at Microsoft's request. In From Maimonides to Microsoft, Professor Netanel traces the historical development of Jewish copyright law by comparing rabbinic reprinting bans with secular and papal book privileges and by relaying the stories of dramatic disputes among publishers of books of Jewish learning and liturgy. He describes each dispute in its historical context and examines the rabbinic rulings that sought to resolve it. Remarkably, the rabbinic reprinting bans and copyright rulings address some of the same issues that animate copyright jurisprudence today: Is copyright a property right or just a right to receive fair compensation? How long should copyrights last? What purposes does copyright serve? While Jewish copyright law has borrowed from its secular law counterpart at key junctures, it fashions strikingly different answers to those key questions. The story of Jewish copyright law also intertwines with the history of the Jewish book trade and with steadfast efforts of rabbinic leaders to maintain their authority to regulate that trade in the face of the dramatic erosion of Jewish communal autonomy in the eighteenth and nineteenth centuries. This book will thus be of considerable interest to students of Jewish law and history, as well as copyright scholars and practitioners.

 

Forthcoming From Hart Publishing: Barbara Lauriat, Intellectual Property and Victorian Inquiry: The Royal Commissions on Patent and Copyright (2018) @hartpublishing @KCL-Law

Forthcoming from Hart Publishing: Barbara Lauriat, Intellectual Property and Victorian Inquiry: The Royal Commissions on Patent and Copyright (October, 2018). Here from the publisher's website is a description of the book's content.

This monograph examines the Royal Commissions on Patent (1864) and Copyright (1878) by exploring the people, procedures, and politics behind these in-depth inquiries into intellectual property reform of the latter half of the nineteenth century, and by placing them within their historical and ideological context. In examining copyright and patent law from the ground up, commission members were necessarily forced to grapple with fundamental questions about the nature of property itself. Commissioners' views on the nature and purpose of copyright and patent influenced their views on how far the rights should extend-in time, geography, and scope. Close analysis of the Commissions provides insight into our own debates about the nature of intellectual property and provide a model for future attempts at law reform. The book is a contribution to the history not only of intellectual property law but also of royal commissions in the nineteenth century. The author gives a well-rounded picture of developments in thought about intellectual property as a whole in the period, which are still critical in the way we understand and approach the subject today.

 

Ginsburg on The 1593 Antonio Tempesta Map of Rome @ColumbiaLaw

Jane C. Ginsburg, Columbia Law School, is publishing The 1593 Antonio Tempesta Map of Rome in A History of IP in 50 Objects (Dan Hunter and Claudy Op Den Kamp, eds., Cambridge University Press, 2018). Here is the abstract.

This Essay examines Florentine painter and engraver Antonio Tempesta’s 1593 petition for a Papal printing privilege on his great bird’s-eye view Map of Rome. The arguments Tempesta made in support of his request for the exclusive rights to print, sell and control variations on his map evoke justifications spanning the full range of modern intellectual property rhetoric, from fear of unscrupulous competitors, to author-centric rationales. Invocations of labor and investment and unfair competition-based justifications were familiar – indeed ubiquitous – in Tempesta’s time, and still echo today. Long before the 1710 British Statute of Anne (vesting exclusive rights in authors), the precursor regime of printing privileges had well understood printing monopolies to be incentives to intellectual and financial investment. The pre-copyright system thus firmly established one of the philosophical pillars of modern copyright law. Tempesta’s petition, however, goes further than its antecedents with respect to the second pillar of modern copyright law, the natural rights of the author, a rationale that roots exclusive rights in personal creativity. Tempesta focused the rights on the creator, and equated creativity with his personal honor, thus foreshadowing a moral rights conception of copyright.

Download the essay from SSRN at the link.

Gibson on Taming Uncivil Discourse: Does Reappropriating Group Insults Work? @WUSTL @SimonTheTam

James L. Gibson, Washington University in St. Louis, Department of Political Science, has published Taming Uncivil Discourse: Does Reappropriating Group Insults Work? Here is the abstract.

In an era of increasingly intense populist politics, a variety of issues of intergroup prejudice, discrimination, and conflict have moved center stage in American politics. Among these is “political correctness” and, in particular, what constitutes a legitimate discourse of political conflict and opposition. Yet the meaning of legitimate discourse is being turned on its head as some disparaged groups seek to reclaim, or reappropriate, the slurs directed against them. Using a Supreme Court decision about whether “The Slants” – a band named after a traditional slur against Asians – can trademark its name, we test several hypotheses about reappropriation processes, based on a nationally representative sample with an oversample of Asian-Americans and several survey experiments. In general, we find that contextual factors influence how people understand and evaluate potentially disparaging words, and we suggest that the political discourse of intergroup relations in the U.S. has become more complicated by processes of reappropriation.

Download the article from SSRN at the link.

Finchett-Maddock on Outsider Poesis in Street Art and Graffiti @Palgrave_

Lucy Finchett-Maddock, Sussex School of Legal Studies, is publishing In Vacuums of Law We Find: Outsider Poiesis in Street Art and Graffiti in the Art Crime Handbook (Duncan Chappell and Saskia Hufnagel, eds., Palgrave MacMillan) (forthcoming). Here is the abstract.

This piece seeks to demonstrate the striating role of property within street art and graffiti, creating a threshold where criminal and intellectual property meet to both outlaw and protect street art at the same time. Street art reveals a legal vacuum for poiesis, protest and property on the threshold of aesthetic and juridical legitimacy and illegitimacy, illustrating where law means all and nothing at once. Legal sanction is argued as affecting the aesthetics of street art, where criminalisation protects the rights of property owners over the creative rights of artists, reasserting the exclusionary nature of law, intertwined with reasserting the ‘outsider’ nature of their art. This is argued as not coincidental, but that notions of aesthetics are not only prioritised by the art ‘establishment’, but also supported by law, to the detriment of other forms of aesthetics such as street art and graffiti. As such, street art and graffiti reveals the elixir of property in both the art and legal establishments, coming to pass as a result of violent histories of expropriation through art property and real property. Ultimately, street art and graffiti is argued as a protest against the legal-aesthetic hegemony, the analysis of criminal, real and intellectual property meeting points telling us more about the congenital role of art in law and vice versa than solely explaining the legalities of random acts of illicit expression.

Download the essay from SSRN at the link.

Hoopes on Reclaiming the Primary Significance Test: Dictionaries, Corpus Linguistics, and Trademark Genericide

Neal Hoopes (Independent) has published Reclaiming the Primary Significance Test: Dictionaries, Corpus Linguistics, and Trademark Genericide. Here is the abstract.

Companies spend billions to promote their brand. But with increased trademark recognition comes the possibility of losing exclusive rights to use that trademark, a process called genericide. Courts have often turned to linguistic evidence, such as dictionaries and media usage, to determine whether a trademark has become generic. These courts merely suggest that linguistic tools reflect a trademark’s meaning. Yet these tools are not the objective indicators that courts have assumed. This Paper discusses why using dictionaries and media usage to prove genericide is a mistake and then turns to evaluating another tool, corpus linguistics. Corpus linguistics, unlike other linguistic tools, may prove beneficial for companies seeking to protect their trademarks. Ultimately, however, linguistic tools — including dictionaries, media usage, and corpus linguistics — cannot prove genericism because linguistic data may, at best, prove a term’s majority usage. But the Lanham Act requires a showing of primary significance. The Paper contends that courts should maintain majority usage and primary significance as distinct concepts and, in this way, should reclaim the primary significance test.

Download the article from SSRN at the link.

New From Elgar Publishing: Niels van Dijk: Grounds of the Immaterial: A Conflict-Based Approach to Intellectual Rights @ElgarPublishing

New from Elgar Publishing: Niels van Dijk, Postdoctoral Fellow, Research Group on Law, Science, Technology, and Society, Vrije Universiteit Brussel, Belgium, Grounds of the Immaterial: A Conflict-Based Approach to Intellectual Rights (2017).

This book applies a novel conflict-based approach to the notions of ‘idea’, ‘concept’, ‘invention’ and ‘immateriality’ in the legal regime of intellectual property rights by turning to the adversarial legal practices in which they occur. In doing so, it provides extensive ethnographies of the courts and law firms, and tackles classical questions in legal doctrine about the immaterial nature of intellectual property rights from a thoroughly new perspective. The book follows the legal proceedings of disputes in patent, copyright and trademark law as they circulate from the sites of enterprises, through the offices of law firms, the court registry, the courtroom and the judge’s office, until they finally arrive at judgment. In this way, the central matters of a dispute are gradually transformed into immaterial works, inventions, or signs through the ceaseless ‘material’ operations of legal practices. This analysis sheds light on how seemingly abstract philosophical notions are rendered workable as concrete legal concepts with important consequences. Grounds of the Immaterial offers an inventive and refreshing take on intellectual property rights which will be valued by academics and students in philosophy, legal theory, legal anthropology and intellectual property.

 

McCutcheon on Some Observations Inspired by Kelley v. Chicago Park District

Jani McCutcheon, University of Western Australia Faculty of Law, is publishing Natural Causes: When Author Meets Nature in Copyright Law and Art. Some Observations Inspired by Kelley v Chicago Park District in volume 86 of the University of Cincinnati Law Review. Here is the abstract.

This article considers the interplay between author and nature in United States copyright law, using Kelley v Chicago Park District as a catalyst. In Kelley, the Seventh Circuit repudiated Chapman Kelley’s authorship of his enormous wildflower garden, Wildflower Works, partly on the basis that natural forces, rather than Kelley, were primarily responsible for the form of the work. The article has two broad purposes. The first is to critique the Seventh Circuit’s denial of Kelley’s authorship. The article argues that the Seventh Circuit misconceived Wildflower Works by conflating the work with the plants constituting it. This skewed its assessment of Kelley’s authorship, failing to give sufficient weight to his selection and arrangement effort. The second, and primary, purpose of the article is to explore the ramifications of Kelley for other contemporary art employing natural materials and natural forces, and to more deeply examine authorship doctrine in this context. Using a number of examples of artists who collaborate with nature, the article explains how natural forces can disturb authorship, but may not defeat it. The aims of the article are to fuel discussion, prompt reflection, and question some deeper assumptions about the relationship between nature and authorship in copyright law.

Download the article from SSRN at the link.

Comino, Galasso, and Grasizno on The Diffusion of New Institutions: Evidence From Renassiance Venice's Patent System @AlbertoGalasso

Stefano Comino, Università degli Studi di Udine, Alberto Galasso, University of Toronto, Rotman School of Management, University of Toronto, Strategic Management, and Clara Graziano, Università degli Studi di Udine - Department of Economics; CESifo (Center for Economic Studies and Ifo Institute for Economic Research, have published The Diffusion of New Institutions: Evidence from Renaissance Venice's Patent System. Here is the abstract.

What factors affect the diffusion of new economic institutions? This paper examines this question by exploiting the introduction of the first regularized patent system, which appeared in the Venetian Republic in 1474. We begin by developing a model that links patenting activity of craft guilds with provisions in their statutes. The model predicts that guild statutes that are more effective at preventing outsiders’ entry and at mitigating price competition lead to less patenting. We test this prediction on a new dataset that combines detailed information on craft guilds and patents in the Venetian Republic during the Renaissance. We find a negative association between patenting activity and guild statutory norms that strongly restrict entry and price competition. We show that guilds that originated from medieval religious confraternities were more likely to regulate entry and competition, and that the effect on patenting is robust to instrumenting guild statutes with their quasi-exogenous religious origin. We also find that patenting was more widespread among guilds geographically distant from Venice, and among guilds in cities with lower political connections, which we measure by exploiting a new database of noble families and their marriages with members of the great council. Our analysis suggests that local economic and political conditions may have a substantial impact on the diffusion of new economic institutions.

Download the article from SSRN at the link.

Alexander on Libel and Copyright in the Satire of Peter Pindar

James R. Alexander, University of Pittsburgh, Johnstown, has published Libel and Copyright in the Satire of Peter Pindar. Here is the abstract.

In 1802, the English Chancery Court denied the satirical poet John Wolcot (‘Peter Pindar’) injunctive relief for copyright infringement claimed against his publisher John Walker. While the original agreement between the parties was ambiguous, the ruling was more procedural rather than interpretive. As Wolcot’s verse was always scandalous and arguably libelous, Eldon ruled that Wolcot should first establish his property in the contested works at law before seeking equitable relief, to thereby clear away any question of their criminality. This was arguably the first application to copyright of an eighteenth-century maxim that there could be no property in criminally-libelous literary works. Almost immediately and for over the next century in equity cases and both English and American legal treatises, Eldon’s ruling was interpreted as establishing the Court as censor morum, authorized under common law to rule exceptions to copyright protection based on a determination of illicit or illegal content, regardless of whether copyright statutes specified content-based exceptions. However, a careful review of the Chancery records reveals the ruling warrants a more tempered reading, and that the long-assumed legal precedent may have followed a hoped-for rather than established principle.

Download the article from SSRN at the link.