Intellectual Property: History, Public Domain and Ideas

The World Intellectual Property Organisation (WIPO) refers to the ‘products of the mind: inventions, literaray and artistic works, any symbols, names, images and designes used in commerce’ as intellectual property.  This type of property is protected in law by processes such as patents, copyright and trademarks.


Intellectual property

The aim of intellectual property in law is to support people in being recognized for their achievements and aid them in getting some financial benefit from what they invent or create.


A chief consideration in intellectual property law is the striking of a balance between the interests of innovators and the wider public interest so that an environment is created that fosters invention and creativity.


The World Trade Organisation (WTO) gives the definition ‘intellectual property rights are rights given to people over the creation of their minds’.  Creators can gve given the right to prevent others from using their inventions, designs or other creations.  These rights are known as ‘intellectual property rights.


They exclude the most basic product-of-the-mind-ideas which are not generally protected as property.  In dealing with such ideas, intellectual property law deals with the abstract.  It engages with the noumenal which can be tricky – this means that we are involved in thinking about the non-physical as well as how it manifests in the physical world.



Each area of intellectual property has it’s own history.  Peter Drahus suggests one of the origins: “Most students of intellectual property are told of the distinction between corporeal (roughly, tangible) and incoporeal (roughly, intangible) property and that intellectual property rights are an example of incorporeal rights….


The distinction between corporeal and incoporeal things is to be found in the classical period of Roman and private law. Classical Roman law, we know from the Institutes of Gaius, divided all law into the law relating to persons, things or actions.  the distinction between corporeal and incorporeal occurs in the law of things.  It is stated by Gaius in the following way:


12. Further, things are divided into corporeal and incorporeal. 13. Corporeal things are tangible things, such as land, a slave, a garment, gold, silver, and countless other things. 14. Incorporeal are things that are intangible, such as exist merely in law, for example an inheritance, a usufruct, obligations however contracted.” (Drahos, A Philosophy of Intellectual Property, page 16)


The first patent for an invention was granted as early as 1565.  Registered trade marks were only brought into existence by the Trademarks Act 1875. The design right was introduced in 1988.  The UK has acquired a database right and governed in part by quite different legal rules and procedures.


Each area of intellectual property law has been shaped in response to changing economic and social conditions.  Only in the second half of the nineteenth century has a discrete body of law been elucidated which can encompass such diverse legal areas as patents, and copyright, trademarks and industrial design rights.


The development of firmer intellectual property law has been attributed to a shift of perception from seeing intellectual property rights primarily as rewards for mental labour to viewing them as important economic assets. Viewing them as products of the market (i.e. economic assets) rather than as products of the mind and individual has meant that it is possible to place copyright side-by-side with trademarks.  Traditionally copyright would be viewed as a reward for individual creativity, and a mechanism for incentivising creativity in culture.


Brad Sherman and Lionel Bently Intellectual Property Law The British Experience 1760–1911

“As economic arguments became more prominent and as commentators increasingly spoke of intellectual property as a mode of rewarding inventors, as a way of exciting ingenuity and encouraging individuals to exert their talents, the now familiar investment theory began to dominate discussions of intellectual property law.


The nature of these changes was highlighted by Thomas Scrutton in the introduction to his classic work on copyright law written in 1883. Speaking of the period up until the middle of the nineteenth century, he said that any attempt to `reduce to principle the laws dealing with Copyright, or the similar laws of Patents and Trade-marks . . .


would naturally commence with an investigation of the nature of the property’. Such an inquiry would `at once lead the student into what has been called the “realm of legal metaphysics”’. (Brad Sherman and Lionel Bently, Intellectual Property Law: The British Experience, 1760–1911, Cambridge University Press, page 174)


Once this view of intellectual property had taken hold, its remit could easily be expanded to include other things such as sound recordings, cable programmes, and electronic databases.  In 2007, the Patent Office, which deals – amongst other things – with the registration of trade marks, patents and with industrial designs, changed its operating name to the UK intellectual Property Office.


‘New’ intellectual production draws from a common stock of knowledge, language and ideas.  If intellectual property rights are too widely drawn then this common stock will become depleted, impoverishing intellectual life and inhibiting intellectual production, whether it be of useful inventions, books, music, films or trade symbols. To protect this common stock, limits have been placed on the protection afforded by intellectual property rights. It is not possible to own a copyright in an idea, nor to patent a discovery.  The law defines a number of circumstances in which it is possible to make use of another’s intellectual property – without infringing his or her rights, such as the fair dealing provisions in copyright.


The question of how we demarcate the area of protection given by an intellectual property right is regularly discussed and tested in various areas. The idea offers up a number of problems.  For example, a piece of land may be measured in metres but intellectual property is itself intangible, thus has different characteristics to property of the physical world.  The fact that an idea is shared may not dissipate it but make it stronger in one respect – as an idea becomes common language it gains traction; however, it may be viewed that financially, rent should be paid for the use of some intellectual property.


The boundaries of a piece of intellectual property law might not be identified unless and until they are legally challenged.  For instance the monopoly offered by a patent or the extent of a trade secret.  Famously, there is the case of Eli Whitney who is most famous for producing the cotton gin.  A cotton gin pulls the seeds from the cotton so that it can be easily spun into cloth, and at the start of the twentieth century represented a major technology.  Although he had patented his invention, various courts across the United States did not hold it up when other people started copying its design.  The invention was deemed too important for the public domain.


The Public Domain

One way of understanding intellectual property is by looking at what the different kinds of intellectual property have in common – patents, copyright, industrial designs, trade names and confidential information.  Intellectual property has no material existence.  Patents and trade marks for example, cannot be discussed – except as a form of property for they come into being at the point when they are legally recognised.


Peter Drahus A Philosophy of Intellectual Property

“Property has been and remains one of the bedrock subjects of social science theorizing.  In its rights form (the idea that property is a bundle of rights) property continues to be a key target for philosophical analysis…Like other property rights, intellectual property rights are relations between individuals. Unlike real property law, intellectual property law posits rights in abstract objects. An algorithm and the formulae for penicillin and its derivatives are examples of abstract objects….


A property form that allows private hands to capture important abstract objects creates, amongst other things, many person-dependent relationships in a society.  It swells the growth of private power.  The negative liberty of individuals, the right not to be interfered with, faces great dangers.  There is a lot at stake when property extends its reach to abstract objects” (Drahos, A Philosophy of Intellectual Property, page 1)


Once in existence intellectual property rights have much in common with the rights associated with real property. For the most part, intellectual property rights can be bequeathed.  Ownership generally gives an exclusive right to exploit the property or to give others a license to do so in a variety of ways.  These monopoly rights that are granted to the owners of intellectual property are not without problems as they can impoverish the public domain.


In considering the public domain, the interdependence of everything must be recognized.  Knowledge and inspiration is derived and not created, one could argue; however, equally we could take the perspective that a uniqueness of skill, arrangement and effort has gone into something.


Jessica Litman – Associate Professor of Law, Wayne State University – discusses some of these aspects of the Public Domain which belongs to everyone, and to which everyone belongs….


“Copyright law purports to define the nature and scope of the property rights that it confers by relying on the concept of originality. In fact, originality is an apparition; it does not, and cannot, provide a basis for deciding copyright cases. The vision of authorship on which it is based – portraying authorship as ineffable creation from nothing – is both flawed and misleading….If we took that vision seriously, we could not grant authors copyright rights without first dissecting their creative process to pare elements adapted from the works of others from the later authors’ recasting of them. That dissection would be both impossible and unwelcome.


If we eschewed that vision but nonetheless adhered unswervingly to the concept of originality, we would oblige each author to solicit the permission of her predecessors. In such a world, most works of authorship would find themselves enjoined by the owners of other copyrights. The public domain rescues us from this dilemma. It permits us to continue to exalt originality without acknowledging that our claims to take originality seriously are mostly pretense.


It furnishes a crucial device to an otherwise unworkable system by reserving the raw material of authorship to the commons, thus leaving that raw material available for other authors to use. The public domain thus permits the law of copyright to avoid a confrontation with the poverty of some of the assumptions on which it is based.”

(Jessica Litman, ‘The Public Domain’, Emory Law Journal, Fall, 1990)


The conclusion to Litman’s paper on the public domain above highlights some key ideas active in the area of intellectual property:

  • That the notion of originality is flawed.
  • The process of establishing originality is impossible.
  • Obtaining permissions is problematic.
  • The public domain resolves dilemma’s of ownership.
  • The public domain is a commons of raw material available to all.
  • Intellectual property law is conflicted


While intellectual property is itself intangible, it will be embodied in the physical world with real objects.  The examples which Jennifer Davis gives are that a Coca Cola sign, a best selling novel, and a new wonder drug may constitute the phsyical embodiment of an intellectual property right: a registered trade mark, a copyright and a patent, respectively.




This article is a digest of ‘Intellectual Property Law; 4th Edition’ by Jennifer Davis, Oxford University Press; ISBN: 9780199581429