Intellectual Property Universal Origins of Intellectual Property Development Team Role Principal Investigator Paper Coordinator

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(1)Law. Intellectual Property Universal Origins of Intellectual Property Development Team Role Principal Investigator Paper Coordinator. Name. Affiliation. Professor (Dr.) Ranbir Singh. Vice Chancellor, National Law University, Delhi. Mr. Yogesh Pai. Assistant Professor of Law, National Law University, Delhi Associate Professor, Jindal Global Law School, Sonipat National Law University, Delhi. Content Writer (CW). Dr. Vishwas Devaiah. Content Reviewer (CR). Mr. Pratyush Kumar.

(2) Module Detail Subject name. Law. Paper name. Intellectual Property. Module name/ Title. Universal Origins of Intellectual Property. Module Id. Law/IP/#02. Pre- requisites. Conceptual understanding of IPRs, different types of IPRs, need for IPRs To get a fundamental understanding about how different categories of IPRs developed historically in different jurisdictions Intellectual property, history of intellectual property, origins of IPR, history of patents, copyright, trademarks, guilds. Objectives. Key words. 2.

(3) Structure of Module Topic Sub Topic Introduction 1.1 The Stationers’ Copyright 1. Origins of Copyright Law. 1.2 Statute of Anne. 1.3The battle of publishers. 2.1 Guilds and marks 2. Origins of Trade mark law. 2.2 Common law and Statutory developments. 3.1 Genesis of the patent system 3. Origins of the patent law. 3.2 Traces of modern patent system in England 3.3 Setting the base for Statute of Monopolies 3.4 Statute of Monopolies 1623. Summary Self Check Exercises. Introduction Intellectual Property Rights (IPR) as we know has become part of every day life. New technologies, creative works and marks on consumer products have become subject matter of protection under different IPR regimes. In this module we will examine the universal origins of copyright, trade mark and patents which will enable us to put into perspective as to how the modern day IPR framework took shape.. 3.

(4) Learning Outcome:     . To understand the need for familiarizing with the history of IP laws To understand the context in which distinct IP law evolved To understand how and why countries maintained different standards of IP or calibrated IP based on their development needs To distinctly understand the origins of different types of IPRs- copyrights, patents and trademarks To understand how early case law jurisprudence has shaped IP law and how courts balanced monopoly with public interest. 1. Origins of Copyright Law It is well known that in ancient Egypt most of the writing was on leaves and parchments.1 As replication was time consuming most of the works remained confined to a specific region in which it was created.2Romans nurtured a system of dictation that enabled quick replication of a book.3 However, even with this practice, books largely remained out of the reach of the ordinary people. Although wooden print blocks were invented in China it was fairly cumbersome to print and was largely unknown to the outside world. 4 The use of paper and the subsequent invention of the movable printing press by Gutenberg in the 15th century revolutionized the literary world.5 The movable printing press enabled publishers to replicate multiple copies of books which could be distributed in various parts of the world. Thus, the printing press enabled creative works of authors to reach people beyond territorial limits within a short span of time. This influx of creative work spawned the growth of intellectual exchange and critical reflection. This resulted in numerous works that questioned the role of the clergy and the monarchs.6 To control the circulation of works that were largely against the church and the monarch, a system of censorship was introduced that would filter out such works from being circulated and published.7 Later a system of licensing was introduced wherein only certain recognized printers were allowed to publish certain works for a specific period of time.8 Such licenses or privileges were issued in the city of Venice to control the flow of information. Similarly, Queen Elizabeth in England granted 1. Ronan Deazley, Martin Kretschmer, Lionel Bently, Privilege and Property: Essays on the History of Copyright (Open Book Publishers 2010). 2 Ibid. 3 Ibid. 4 Ibid. 5 Augustine Birrell, Seven Lectures on the Law and History of Copyright in Books (Cassell and Company 1889). 6 Ibid. 7 Ibid. 8 David Suanders, Authorship and Copyright (Routledge 1992).. 4.

(5) privileges in the form of monopolies to printers.9Any unauthorized publication by a printer was punished and his privileges revoked.10. Point to Remember The use of paper and the subsequent invention of the movable printing press by Gutenberg in the 15th century revolutionized the literary world. The movable printing press enabled publishers to replicate multiple copies of books which could be distributed in various parts of the world. Thus, the printing press enabled creative works of authors to reach people beyond territorial limits within a short span of time. This influx of creative work spawned the growth of intellectual exchange and critical reflection. This resulted in numerous works that questioned the role of the clergy and the monarchs. To control the circulation of works that were largely against the church and the monarch, a system of censorship was introduced that would filter out such works from being circulated and published.. 1.1 The Stationers’ Copyright In the 16th century, Edward VI granted the Charter of the Stationers Company which empowered a group of printers in London to govern and control the printing of books.11The Charter allowed the Stationers to decide what to publish and it also equipped them to search for illegal printers and books.12 The Stationers Company had the power to seize, take or burn the books that were not registered with them. 13 Through the Charter, the King effectively exercised censorship and it also benefited the London printers who were part of the Stationers Company as it allowed them to prevent entry of any new printers. 14 Registration of book titles was largely vested with the Stationers Company who kept. 9. Ibid. Ibid. 11 Ronan Deazley, Rethinking Copyright: History, Theory, Language (Edward Elagr 2006). 12 Ibid. 13 Brad Sherman, ‘Remembering and Forgetting: The Birth of Modern Copyright Law’ in David Nelken Comparing Legal Cultures (Ashgate 1997) 237-266 14 Ibid. 10. 5.

(6) control of it for themselves.15This in away acted as a copyright although it largely protected the publishers' interest as opposed to that of the author.16The publishers exercised perpetual monopoly over their right to publish books and numerous policies were created to avoid competition.17 1.2 Statute of Anne In 1694 Stationers’ company was not allowed to extend their monopoly as their power to register books and controlpublishing was not renewed by the Parliament which recognized the fact that this system failed to recognize the author.18In 1709, the Statute of Anne was passed by the Parliament that recognized the rights of the author. This was the earliest legislation on copyright. The Statute of Anne came into force in 1710 and it aimed at recognizing the rights of the author to protect his work.19 The Statute of Anne allowed the author’s work to be protected for a period of 14 years, which could be extended to a further period of 14 years only if the author was alive at the end of the first term.20Works created prior to the enforcement of the Statute of Anne was extended copyright protection for a period of 21 years from the date of its creation.21 This meant that the publishers monopoly over printing books was no longer perpetual. Works of Shakespeare and others created long before 1710 could now be published by other printers which created resentment amongst the London publishers.22 . 1.3 The battle of publishers The publishers, especially those in London, challenged the duration of the copyright set out in the Statute of Anne.23 Multiple cases were filed and the publishers argued that the duration of copyright should be interpreted as monopoly in perpetuity as recognized under common law.24 The validity of the duration set under the Statute of Anne was questioned. They also argued that limiting the duration of copyright protection offered no incentive to the authors to come up with creative work as they may not earn enough and that their estate would not be able to inherit the rights.25 However, other publishers (including the Scottish publishers) argued that perpetual monopoly would impede the flow of information and push the society towards the dark ages.26The House of Lords though dismissed such cases and confirmed that there is no perpetual copyright.27This enabled works beyond 21 years (i.e if created prior to 1710) would be available in the public domain to everyone without any 15. Augustine Birrell, Seven Lectures on the Law and History of Copyright in Books (Cassell and Company 1889). 16 Ibid. 17 Ibid. 18 Ronan Deazley, Martin Kretschmer, Lionel Bently, Privilege and Property: Essays on the History of Copyright (Open Book Publishers 2010). 19 Ibid. 20 Ibid. 21 Ibid. 22 Ronan Deazley, Rethinking Copyright: History, Theory, Language (Edward Elagr 2006); Augustine Birrell, Seven Lectures on the Law and History of Copyright in Books (Cassell and Company 1889). 23 Ibid. 24 Millar v. Taylor; Midwinter v Hamilton; Donaldson v Beckett 25 Donaldson v Beckett 26 Ibid. 27 Ibid.. 6.

(7) restriction.28The seeds of the modern day copyright originated in the Statute of Anne and the subsequent battle between publishers.29. 1. Origins of Trade mark law. It is well known that archeologists have found evidence that ancient Greeks used symbols and marks on their artefacts and potteries.30 Similarly, Egyptians used symbols on pyramids to indicate the origin of those structures. Romans used symbols on bricks and the sword manufacturers in England were required to use symbols to identify the makers.31The idea was largely to trace the defective swords to the maker. Subsequently, as trade increased, marks and symbols were used by merchandise markers to clearly identify the territory from which the goods originated.32 2.1 Guilds and marks It was not until the emergence of the guild system in the 14th and 15th century that marks and symbols were associated as source identifiers.33 The emergence of the guild system and the increase in trading activities led to increased demand for goods that maintained high quality.34 Some guilds like the London bakers gained reputation for quality.35However, guilds also faced risks from counterfeiters who cashed in on the reputation of certain guilds.36 In order to maintain the reputation of the guilds, it was necessary to come up with measures that enabled guilds to identify whether a product is a counterfeit or not.37 Marks were introduced by guilds to clearly identify the origin of the product.38Every guild member was required to not only use the guild mark but also identify himself. In effect a product would bear the guild mark, street name and the year of manufacture.39This facilitated all the guild members to trace back the product to its maker within the guild. In case a product fell below a particular standard they could haul up the particular maker or remove him from the guild.40Thus in the middle ages marks were used to protect the goodwill of the guild and any counterfeiter would be subject to harsh punishment.. 28. Ibid. Benedict Atkinson and Brian Fitzgerald, A Short History of Copyright: The Genie of Information (Springer 2014). 29. 30. Abraham Greenberg, ‘The Ancient Lineage of Trade-Marks’ (1951) 33 Journal of Patent Office Society 876. 31 Ibid. 32 Ibid. 33 Merchant, 'Trade-Marks-Past and Present', (1954) 36 Journal of Patent Office Society 341. 34 Ibid. 35 Ibid. 36 Ibid. 37 Ibid. 38 Sidney Diamond, 'Historical Development of Trademarks, (1983) 73 Trademark Representative 222. 39 Ibid. 40 Ibid.. 7.

(8) 2.2 Common law and Statutory developments Individual traders and manufacturers gained prominence with the breaking up of guilds and they used marks to fiercely protect their products from counterfeiters. Many cases were fought in the courts and counterfeiters were subject to the rulings of the court.41 Early trademark jurisprudence developed through common law tort based actions. The earliest recorded case decided by the English courts was brought by Sandford who sold clothes with the mark ‘JD’.42 Sandford had gained reputation for fine quality clothes in the market and consumers would buy clothes relying on the mark impressed on the clothes. 43 Sandford brought a case stating that the defendant had deceitfully used the mark on low quality clothes and sold it for two years.44As a result of the defendant’s low quality goods it became difficult for the plaintiff to sell his goods in the market as customers and traders who bought from the defendant associated the goods to be of low quality. Sandford alleged the tort of deceit and trespass.45Court allowed Sandford to recover damages from the defendant for interfering with his property.46 In Sykes v Sykes, the English courts had the opportunity to decide on the right to use a mark in 1824.47 Plaintiff complained that the defendant used his mark “Sykes” on his product, whichaffected his sales. Court agreed that the defendant was relying on the reputation of the plaintiff to sell his goods. 48 Subsequent cases were brought on the basis of deceit, i.e. defendant defrauded the plaintiff.49 In Millington v Fox, it was decided by the courts that it is immaterial whether defendant knew about the existence of the plaintiff’s marks. 50 If the plaintiff had gained reputation using a particular mark then it was assumed that he had property rights in the mark.51The common law developments later on led to the passing off jurisprudence, which is a prevalent practice in modern day trademark litigation. The Merchandise Marks Act passed in 1862 was the first statute that allowed traders to bring action on the basis of deceiving the owner of the mark.52 Subsequently in 1875, the Trademark Registration Act was passed which facilitated for the registration of the marks.53 In 1905, the Trademark Act allowed for a process of registering the marks on the basis of 41. Lionel Bentley, ‘From communication to thing: historical aspects of the conceptualization of trademark as property’ in Graeme B. Dinwode and Mark D. Janis, Trademark Law and Theory: A Handbook of Contemporary Research (Edward Elgar: 2008) pp.3-41. 42 Ibid. 43 Ibid. 44 Ibid. 45 Lionel Bentley, ‘From communication to thing: historical aspects of the conceptualization of trademark as property’ in Graeme B. Dinwode and Mark D. Janis, Trademark Law and Theory: A Handbook of Contemporary Research (Edward Elgar: 2008) pp.3-41. 46 Ibid. 47 Frank I. Schechter, The Historical Foundations of the Law Relating to Trade-marks (The Lawbook Exchange 1925). 48 Ibid. 49 Ibid. 50 David Higgins, ‘Trademarks and Infringements in Britain’ in Teresa da Silva Lopes and Paul Duguid, Trade Marks, Brands and Competitiveness (Routledge 2010). 51 Leather Cloth Co. v. American Leather Cloth (1865) 11 ER 1435. See Christopher Wadlow, The Law of Passing-off: Unfair Competition by Misrepresentation (Sweet & Maxwell 2011). 52 Lionel Bentley, ‘From communication to thing: historical aspects of the conceptualization of trademark as property’ in Graeme B. Dinwode and Mark D. Janis, Trademark Law and Theory: A Handbook of Contemporary Research (Edward Elgar: 2008) pp.3-41. 53 Ibid.. 8.

(9) intent to use and it introduced asystem of examining the marks.54 Thus the genesis of the modern day trademark can be traced to both common law and statutory developments in England.. 2.. Origins of the patent law. It is said that one of the earliest monopoly was granted in Greece to a cook for a new dish that he created. In subsequent years, the guilds in the Roman empire were granted some form of monopoly over their innovative products.55 However, these monopolies were granted to guilds only in exchange for training two generations of apprentices.56Such an exchange facilitated the transfer of know-how rather than the technology being confined to limited members of the guild. For instance, the Venetian glassmakers followed this model. However, these monopolies were largely meant to protect the know-how of the guild as opposed to protecting the individual.57 3.1 Genesis of the patent system The earliest form of a patent system can be linked to the practices followed in Florence and Venice.58It is said that some form of monopoly was granted to a ship builder who had come up with a technique that allowed the ship to carry heavy material.59 It is said that the municipal corporation of Florence granted the ship builder a monopoly for a period of three years. 60 In subsequent years Venice came up with a framework that protected innovators who came up with novel inventions.61 However, these claims remain inconclusive and ambiguous. 3.2 Traces of modern patent system in England England in the middle-ages sought to offer what is known as Letters Patent and Royal Charters which were monopolies granted by the monarch.62The King clearly declared that a person is entitled to monopolize the market and all others should cease from making the product as it is listed in the Letters Patents.63 Letters Patents were granted in the 12th century and gradually extended to certain guilds that had gained prominence.64 Subsequently, it was extended to individuals as the guild system crumbled. Letters Patent though did not require the recipient of the monopoly protection to showcase a new invention or introduce innovative. 54. Ibid. Harold George Fox, Monopolies and Patents: A Study of the History and Future of the Patent Monopoly (University of Toronto Press 1947). 56 Ibid. 57 Ibid. 58 Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800 (Cambridge 2002). 59 Ibid. 60 Ibid. 61 Ibid. 62 Allan A. Gomme, Patents Of Invention: Origin And Growth Of The Patent System In Britain (Longmans 1946). 63 Ibid. 64 Ibid. 55. 9.

(10) products in the market.65 Privileges on the other hand were monopolies granted to those who came up with new technologies and wanted to introduce it in the country.66The King used it as an incentive to lure foreigners to introduce new innovations in England.67 The objective was to ensure that England remained competitive with continental Europe which had greatly benefitted from various new technologies in the middle ages. 68 So foreign artists and innovators were encouraged to introduce their technologies in England in exchange for a monopoly over a short period of time.69However, they were supposed to train locals about the new technology by taking locals as apprentice. 70 Thus, many privileges were granted which benefitted England. Queen Elizabeth granted several privileges during her reign but allowed it only if the new technology was worked within the territory and local artisans were trained. 71 The privilege allowed the person to extend monopoly for a period of 14 years.72Privileges were easily granted and it lured a number of artists and innovators to introduce new art or technology in England.73However, Queen Elizabeth exercised her powers to grant privileges largely to favour the nobility and keep them happy.74Such abuse of power extended to grant of privileges over making of salt, making of cards and such other routine products known to people and practiced by many. 75 Grant of such privileges prevented other traders from practicing a known art. This resulted in monopoly situations and subsequent price rise. 76 During the latter years of Queen Elizabeth’s reign grant of such privileges were challenged in the courts.77 In Darcy v Allen the question before the court was whether the grant of privilege for making of playing cards was legitimate. 78 Elizabeth had granted privilege to make playing for a period of 14 years and it was further extended to 12 years.79 This prevented several card makers from making cards and also affected their livelihood. It also led to a monopoly situation that resulted in the increase in prices.80It was stated that such privileges were illegitimate as the monopoly was over a known technology. It was also argued in the case that this resulted in the abuse of powers by the Queen.81Although the court did not revoke the privilege it galvanized members of the society and the political representatives to challenge grant of privileges. 65. Hulme E. Wyndham, ‘The history of the patent system under the prerogative and at common law’ (1897) 12 Law Quarterly Review 141-154. 66 Ibid. 67 Ibid. 68 Ibid. 69 Hulme E. Wyndham, ‘The history of the patent system under the prerogative and at common law: Sequel’ (1990) 16 Law Quarterly Review 44. 70 Ibid. 71 Ibid. 72 Klaus Boehm and Aubrey Silberston, British Patent System: Administration, Volume 1 (Cambridge University Press 1967). 73 Ibid. 74 Ibid. 75 Ibid. 76 Ibid. 77 Sean Bottomley, The British Patent System and the Industrial Revolution 1700-1852: From Privilege to Property (Cambridge University Press 2014). 78 Ibid. 79 Ibid. 80 Ibid. 81 Ibid.. 10.

(11) 3.3 Setting the base for Statute of Monopolies Members of the House of Commons raised concerns about the abuse of power by the royalty in granting privileges that inconvenienced traders and common people.82King James who had succeeded Queen Elizabeth agreed that privileges harmed the society and cancelled many privileges issued by the previous reign.83However, King James continued to issue such privileges which irked the members of the House of Commons.84One such instance is the grant of privileges given to a group of tailors who could monopolize tailoring in the region of Ipswich.85 This created resentment amongst local tailors who were out of business due to the grant of this privilege. However, the English court declared such privileges to be illegitimate as it was against free trade.86 The courts though stated that privileges could be granted to introduce new technologies that did not exist previously.87However, King James continued on similar lines and issued several privileges that resulted in monopolies.88 3.4 Statute of Monopolies 1623 The Parliament initiated steps to pass a legislation based on the review report submitted in the House of Commons. 89 In 1623, the Parliament passed the Statute of Monopolies which was a framework to grant patents for new inventions.90 However, it clearly detested granting of monopolies to things that were already known to ordinary people.91 The Statute of Monopolies in effect introduced a system of novelty and the duration of patent monopoly was for a period of 14 years.92 The logic for granting monopoly period for 14 years can be linked to the idea of training atleast two generation of apprentices (each apprenticeship lasted for 7 years). In subsequent years, the Statute of Monopolies was amended several times and it incorporated the concept of granting patents to those who approached the patent office first.93Similarly, after nearly two hundred years of the Statute of Monopolies it was amended to incorporate the need to file a written description of the invention.94 Until then inventors could file written description of the invention on a voluntary basis. This change was largely brought about because of the decision in Liardet v Johnson.95 The plaintiff claimed that he 82. Elizabeth Read Foster, ‘The Procedure of the House of Commons against Patents and Monopolies, 1621-1624’ in Allen D. Boyer (eds), Law Liberty and the parliament: Selected Essays on the Writings of Sir Edward Coke (Liberty 2004). 83 Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800 (Cambridge 2002). 84 Ibid. 85 Ibid. 86 Ibid. 87 Ibid. 88 Elizabeth Read Foster, ‘The Procedure of the House of Commons against Patents and Monopolies, 1621-1624’ in Allen D. Boyer (eds), Law Liberty and the parliament: Selected Essays on the Writings of Sir Edward Coke (Liberty 2004). 89 Ibid. 90 Klaus Boehm and Aubrey Silberston, British Patent System: Administration, Volume 1 (Cambridge University Press 1967). 91 Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800 (Cambridge 2002). 92 Ibid. 93 Ibid. 94 Seaborne D. Davies, ‘The early history of the patent specification’ , (1950) 50 Law Quarterly Review pp.86-109. 95 John N. Adams, ‘History of the patent system’ in Toshiko Takaneka (eds.) Patent Law and Theory (Edward Elgar 2009).. 11.

(12) had a patent over making of cement and the defendant infringed it by making cement without his permission.96 The defendant argued that the plaintiff’s invention was already known and as such no patent should have been granted.97The defendant showed literature that existed prior to the grant of the patent.98 Justice Mansfield while delivering the judgment stated that all patent applicants should clearly describe their invention in a written form and file it in the office along with the patent application. 99 Similarly in subsequent years the Statute of Monopolies was amended and later on replaced by other legislations that led to the development of the modern day patent law.100 Summary It can be gleaned from the above sections that the modern day copyright, trademark and patent laws evolved over centuries. The copyright legislation came about in the form of Statute of Anne primarily to end the monopoly and control exercised by the book publishers. The idea was to largely encourage authors and enable them to exercise rights in their works as opposed to the control exercised by the publishers. In doing so the Statute of Anne abolished perpetual monopolies exercised by publishers. Similarly, the trademark practices were largely shaped by the needs of guilds and individual traders to keep out counterfeits. This was recognized by the courts which granted property rights in the marks and also allowed actions for trespass. The patent law evolved to end the abusive grant of privileges by the monarch and the Statute of Monopolies developed the practice of granting patents to encourage the disclosure of new inventions to the society in exchange for a limited monopoly.. Self-check Exercises  Examine the need for familiarizing with the history of IP laws  Note the context in which distinct IP law evolved  How and why countries maintained different standards of IP or calibrated IP based on their development needs?  How did early case law jurisprudence shape IP law and how courts balanced monopoly with public interest?  Why is there a difference in the origins of different types of IPRs- copyrights, patents and trademarks?. 96. Ibid. Ibid. 98 Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800 (Cambridge 2002). 97. 99. Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800 (Cambridge 2002). 100 Ibid.. 12.

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