a short history of “intellectual property” in relation to copyright

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1293

A SHORT HISTORY OF “INTELLECTUAL PROPERTY” IN RELATION TO COPYRIGHT

Justin Hughes∗

TABLE OF CONTENTS INTRODUCTION .............................................................................................................. 1293 I. WIPO AND “INTELLECTUAL PROPERTY” ............................................................. 1296 II. COPYRIGHT AS OR AS PART OF “INTELLECTUAL PROPERTY” ............................. 1303

A. French “Intellectual Property” .................................................................. 1304 B. Italian “Intellectual Property” .................................................................. 1308 C. Spanish “Intellectual Property” ................................................................. 1310 D. “Intellectual Property” in Nineteenth-Century Common-Law Usage.. 1316 E. “Intellectual” Things and the Echo that Remains in Modern Law ....... 1320

III. THE STAKES IN OLD DEBATES ............................................................................... 1323 A. Just a Little Bit of History Repeating ........................................................ 1324 B. A Special Kind of Property ........................................................................ 1332

CONCLUSION................................................................................................................... 1334 APPENDIX A .................................................................................................................... 1337 APPENDIX B..................................................................................................................... 1340

INTRODUCTION

In the corridors of law firms, industry, or government it would not

be controversial to say copyright is intellectual property. But you are now in the pages of a law journal, and on the printed academic page almost anything can be the subject of healthy contest. Of course, the proposition that copyright is intellectual property is too behaviorally ∗ Professor of Law, Benjamin N. Cardozo School of Law, New York. My thanks to Robert Brauneis for providing me with the initial critique that inspired this project. Thanks to Barton Beebe, Robert Brauneis, Robert Burrell, Jane Ginsburg, and Arthur Jacobson for reading and critiquing the entirety of this Article as well as the colleagues and friends in footnote 4. Thanks also to Alex Guzman, Michael Scarpati, and Brandon Sherman for research assistance. The remaining errors are the exclusive intellectual property of the author. Copyright © 2012 by the author. Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for educational or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in the copies.

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1294 C ARD O Z O L A W R E V IE W [Vol. 33:4

true—that’s what people say—for a direct assault, but a wide variety of commentators have expressed concerns about calling the exclusive rights of copyright (or patents) a form of “property.” As part of this cri-tique, some commentators have claimed that “intellectual property” is a relatively new concept, implying that this unpedigreed concept has itself aided the strengthening of the laws that fall under it.

Elsewhere I have provided two responses to these claims. First, there is no question that “intellectual property” was a moniker used much earlier and more frequently than these commentators have acknowledged. Second, regardless of the use of “intellectual property,” copyright was always called “literary property.” So if the concern is the persuasive power of “property,” it does not matter whether copyright was viewed as “literary property” or “intellectual property.”1 The only way “intellectual property” would make a difference would be if the development of this umbrella concept for patent, copyright, trademark, and design protection somehow strengthened one or more of those laws. That is certainly possible, and we could imagine mechanisms by which that could occur,2 but no one who makes these sorts of claims elaborates on—or marshals evidence concerning—such mechanisms.

But that reasoning assumes—as have other recent commentaries—that the phrase “intellectual property” has always served as the umbrella concept for patent, copyright, and trademark laws. That turns out to be

1 MARJORIE HEINS, “THE PROGRESS OF SCIENCE AND USEFUL ARTS”: WHY COPYRIGHT TODAY THREATENS INTELLECTUAL FREEDOM 4–5 (2003); LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD 293 n.26 (2001); SIVA VAIDHYANATHAN, COPYRIGHTS AND COPYWRONGS 11–12 (2001); Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 S. CAL. L. REV. 993 (2006) (responding to these claims made in Mark A. Lemley, Romantic Authorship and the Rhetoric of Property, 75 TEX. L. REV. 873, 895–96 (1997)); Craig Joyce, “A Curious Chapter in the History of Judicature”: Wheaton v. Peters and the Rest of the Story (Of Copyright in the New Republic), 42 HOUS. L. REV. 325, 328 n.3 (2005); Mark A. Lemley, Property, Intellec-tual Property, and Free Riding, 83 TEX. L. REV. 1031, 1033 (2005); Richard M. Stallman, Did You Say “Intellectual Property”? It’s a Seductive Mirage, GNU, http://www.gnu.org/philosophy/not-ipr.xhtml (last updated Sept. 20, 2011). Trademarks and patents also, of course, have a long history of being regarded as “property” whether the adjective was “intellectual,” “industrial,” or something else. See, e.g., Lionel Bently, From Communication to Thing: Historical Aspects of the Conceptualisation of Trade Marks as Property, in TRADEMARK LAW AND THEORY: A HAND-BOOK OF CONTEMPORARY RESEARCH (Graeme B. Dinwoodie & Mark D. Janis eds., 2008) (de-scribing trademarks as being treated as property). 2 For example, trademark law researched, taught, and litigated as part of “intellectual property” might be “stronger” than trademark law researched, taught, and litigated by experts in consumer-protection law. Conversely, patent and trademark laws conceptualized as sitting with copyright as part of “intellectual property” might find themselves influenced by copy-right’s more developed system of exceptions, as happened with Articles 13, 17, and 30 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299 [herein-after TRIPS Agreement], whereby copyright’s three-step test for exceptions was extended to trademark and patent laws, respectively. My thanks to Robert Burrell for prodding me on this point.

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2012] H IS T O RY O F “ IN T E L LE C T U A L PR O PE RT Y” 1295

incorrect. In this Article, I will try to give a more nuanced view of early uses of “intellectual property.” By the end, the reader should have a bet-ter sense of the history of “intellectual property” as a phrase torn be-tween being a designation strictly for copyright and being the umbrella concept familiar to us today. The reader will also have a better sense of the timeless—that is, repetitive—nature of some of today’s debates about copyright.

Part I of this Article traces the emergence of “intellectual property” in the name of the World Intellectual Property Organization and its predecessor organization, the Bureaux internationaux réunis pour la protection de la propriété intellectuelle. Part II looks at the winding history of “intellectual property” from sometimes being a name for cop-yright toward being the term for patents, copyrights, trademark, and design laws living under one tent. At the same time, I suggest that the use of “intellectual property” would not have strengthened copyright since copyright was already understood as “property.” Finally, Part III gives some historical context to our present debates about copyright, particularly how entrenched and repetitive copyright’s property-or-not debate actually is. It seems reasonable to believe that treating copyright as property would lead to stronger legal protection, but that intuition may not bear up historically: hard evidence of the rhetorical power of “property” is limited or nonexistent.3

To avoid confusion, in the discussion that follows “intellectual property” means those words in English or their equivalent in the lan-guage under discussion (“intellectual property” in English, “propriété intellectuelle” in French, “propiedad intelectual” in Spanish, and “proprietà intellettuale” in Italian). In all of this research I have profited from the hospitality of several libraries and the aid of academics and attorneys in several countries.4

3 Stuart Banner is among those who believes that, generally speaking, the “property” mon-iker contributed to the strengthening of copyright, patents, and trademark in the twentieth century. See STUART BANNER, AMERICAN PROPERTY: A HISTORY OF HOW, WHY, AND WHAT WE OWN 23–43 (2011). Banner cites an earlier version of this Article for the global use of “intellectual property.” Id. 299 n.5. 4 My thanks to staff at the CUJAS Library (Paris 1), University of Bologna, the University of Trieste, the WIPO library, and Cardozo Law School. Special thanks to Giorgio Spedicato for making the Bologna library system comprehensible (as well as guiding me on some points of Italian jurisprudence). This Article also relies on volumes available on Google Books or via colleagues from the Biblioteca de Catalunya, Barcelona; Columbia; Harvard; the Max Plank Institute, Munich; and the universities of California, Ghent, Oxford, and Michigan. My thanks also to Ida Madieha Abdul Ghani Azmi, Flavio Arosemena, Lionel Bently, Jon Bing, Jorge Cancio, Denis Croze, François Curchod, Marie-Lorraine Dangeard, Jeremy de Beer, Nina Elkin-Koren, Suzy Frankel, Sergio Ellman, Marcelo Oscar Garcia Sellart, Daniel Gervais, Beth A. Gordon, Lucie Guibault, Reto Hilty, Makino Kazuo, Lise McLeod, Jose Maria Mendez, Shinji Niioka, Kyoung-Shin Park, Laurent Pfister, Ole-Andreas Rognstad, Maria Gracia Rubio de Casas, Alain Strowel, Katsuya Tamai, V.K. Unni, and Coenraad Visser for comments on differ-

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I. WIPO AND “INTELLECTUAL PROPERTY”

The World Intellectual Property Organization (WIPO) was estab-

lished in a 1967 treaty as a United Nations body,5 prompting at least one commentator to trace “intellectual property” back only to that seminal moment.6 But as an entity WIPO had already existed in some form since the late nineteenth century. As a 1988 WIPO legal analysis describes it, “[p]rior to 1967, the Organization consisted of a common secretariat, called the United International Bureau for the Protection of Intellectual Property (BIRPI).”7 The acronym BIRPI stood, we are told, for the French “Bureaux internationaux réunis pour la protection de la propriété intellectuelle.” The organization was dubbed a “united” office because it was a combination of the offices established by the Paris Con-vention of 1883 and the Berne Convention of 1886, respectively. The history currently on WIPO’s website recounts the events like this:

1883 marked the birth of the Paris Convention for the Protection of Industrial Property, the first major international treaty designed to help the people of one country obtain protection in other countries for their intellectual creations in the form of industrial property rights . . . . The Paris Convention entered into force in 1884 with 14 member States, which set up an International Bureau to carry out administrative tasks, such as organizing meetings of the member States. In 1886, copyright entered the international arena with the Berne Convention for the Protection of Literary and Artistic Works . . . . Like the Paris Convention, the Berne Convention set up an International Bureau to carry out administrative tasks. In 1893, these two small bureaux united to form an international organization called the United International Bureaux for the Protection of Intellectual Property (best known by its French acronym BIRPI). Based in Berne, Switzerland, with a staff of seven, this small

ent points. Much of the discussion here would not be possible without the contribution of these colleagues and friends. 5 Convention Establishing the World Intellectual Property Organization, July 14, 1967, 21 U.S.T. 1749, 828 U.N.T.S. 3. 6 See VAIDHYANATHAN, supra note 1. 7 World Intellectual Prop. Org. [WIPO], The Governance Structure of WIPO: Memoran-dum of the International Bureau, WIPO Doc. A/32/INF/2 (Feb. 20, 1998), available at http://www.wipo.int/edocs/mdocs/govbody/en/a_32/a_32_inf_2.pdf (“Prior to 1967, the Organization consisted of a common secretariat, called the United International Bureau for the Protection of Intellectual Property (BIRPI), that served the separate Unions of States constituted by several treaties . . . .”).

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organization was the predecessor of the World Intellectual Property Organization of today . . . .8

Both of these accounts seem to represent “intellectual property” as a conscious, nineteenth-century category intended by those leading WIPO’s predecessor to subsume both “literary property” (Berne) and “industrial property,” that is, patents and trademarks (Paris).9

This account seems to be taking hold. In an essay called The Pre-History and Establishment of the WIPO in the inaugural issue of WIPO’s own law review, Christopher May describes the “end of the 19th centu-ry” this way:

With the establishment of the joint secretariat for the conventions as the Bureaux Internationaux reunis pour the protection de la propiete intellectuelle (BIRPI), the governance of intellectual property became one of the first policy areas to develop an early precursor to contemporary global governance.10

Similarly, in her 2011 book, Boatema Boateng writes: WIPO had its origins in the merger in 1893 of the offices administer-ing the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. The result of this merger was the United International Bu-reau for the Protection of Intellectual Property. The bureau became WIPO in 1970 and a specialized agency of the United Nations in 1974.11

The problem with such statements is that they are potentially mis-leading. While “intellectual property” still appears to be a conscious, nineteenth-century effort in some quarters to subsume “literary proper-ty” and “industrial property” under one concept, the history of the phrase is complex and its use inconsistent, both between jurisdictions and within single jurisdictions. Most importantly, WIPO’s predecessor

8 Treaties and Contracting Parties: General Information, WORLD INTELL. PROP. ORG., http://www.wipo.int/treaties/en/general/ (last visited Jan. 7, 2012). 9 Hence the conclusion I reached in Hughes, supra note 1, at 1005–06. 10 Christopher May, The Pre-History and Establishment of the WIPO, 1 W.I.P.O. J. 16, 19 (2009). The essay cites neither primary materials for this claim nor any primary materials in the field of intellectual property at all prior to 1967. 11 BOATEMA BOATENG, THE COPYRIGHT THING DOESN’T WORK HERE: ADINKRA AND KENTE CLOTH AND INTELLECTUAL PROPERTY IN GHANA 154 (2011). A similarly ambiguous statement occurs in Alfredo Ilardi and Michael Blakeney’s important encyclopedia of intellec-tual property treaties: “The precursor of the World Intellectual Property Organization (WIPO) was the Bureaux internationaux réunis pour la protection de la propriété intellectuelle (BIRPI), established in Berne by the Swiss Federal Government to administer the Paris and Berne Un-ions.” INTERNATIONAL ENCYCLOPEDIA OF INTELLECTUAL PROPERTY TREATIES 163 (Alfredo Ilardi & Michael Blakeney eds., 2004).

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did not actually have “intellectual property” in its name in 1883, 1886, 1900, or for decades thereafter.12

While it is true that WIPO’s predecessor was long known by the unfortunate acronym “BIRPI,” the meaning of the final “I” seems to have intentionally been left ambiguous. In the 1990s, WIPO recognized that “BIRPI was in existence, under various names, from 1883 . . . to 1970.”13 It is almost impossible to avoid the conclusion that in those various names the second “I” in BIRPI formally meant “industrielle,” not “intellectuelle,” until the 1950s or 1960s.

In 1986, then–WIPO Director-General Árpád Bogsch provided his own account of the change in terminology. But we will see that this too was incorrect. Bogsch wrote:

[I]n the nineteen fifties and nineteen sixties, the United Bureaus were frequently referred to as the “United International Bureaus for the protection of Intellectual Property” or, in the abbreviated form, “BIRPI” (corresponding to the initials of the French designation Bu-reaux internationaux réunis pour la protection de la propriété intellectuelle). There was no legal basis either for this designation or its abbreviation. They were probably invented by Jacques Secrétan, Director of the United Bureaus from 1953 to 1963. Until then, the full name of the United Bureaus in usage was “United International Bureaus for the Protection of Industrial, Literary and Artistic Proper-ty.” This was obviously too long. Replacing the separate references to industrial property, on the one hand, and literary and artistic proper-ty, on the other, by a single adjective “intellectual” was an ingenious innovation, although in the beginning, it was sometimes misunder-stood as some believed that “intellectual property” was coterminous with copyright.14

The first half of this statement appears to be correct; the last part is odd-ly incomplete for someone in Bogsch’s position.

To fully understand the evolution of “intellectual property” for BIRPI–WIPO, one has to keep the (loose) structure of the organiza-tion(s) in mind.

12 Something Sam Ricketson notes correctly. See SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886–1986 ch. 13, § 13.29, at 726 (1987) (“In the late 1950s, the title ‘Bureaux internationaux réunis pour la protection de la propriété intellectuelle’ and the abbreviation ‘BIRPI’ began to be used to refer to the combined offices, but, once again, no official reference to these usages is to be found in any of the Acts of the Berne or Paris Conventions.”). As Ricketson points out, Árpád Bogsch also noted the same. Id. ch. 13, § 13.29, at 726 n.246. 13 Árpád Bogsch, Brief History of the First 25 Years of the World Intellectual Property Or-ganization, in WIPO, PUB. NO. 881(E), THE FIRST TWENTY FIVE YEARS OF THE WORLD INTEL-LECTUAL PROPERTY ORGANIZATION FROM 1967 TO 1992, at 15, 19 (1992). 14 WIPO, PUB. NO. 877(E), THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS FROM 1886 TO 1986, at 44 (1986).

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The Paris Convention and the Berne Convention, the two nine-teenth-century multilateral treaties that remain the core of the interna-tional intellectual property system, each creates a “union” of that treaty’s members.15 In the pre-WIPO period, the union for the countries be-longing to the Paris Convention was frequently called “l’Union interna-tionale pour la protection de la propriété industrielle,” while its Berne Convention counterpart was frequently named “l’Union internationale pour la protection des oeuvres littéraries et artistiques.”16 In addition, the Paris and the Berne Conventions each establish a relevant secretariat or “international bureau”17 to serve the Union members. These two “bureaus” were international institutions, but not in the sense we under-stand that concept today; they were bodies under the “haute surveil-lance” of the Swiss Government.18 Indeed, until the Swiss Government began its conscious effort to spin off BIRPI, every director-general of the organization was Swiss.

Coming three years after the Paris Convention, the “bureau” creat-ed by the Berne Convention never really existed independently.19 The two bureaus were joined when the Berne Convention became opera-tional;20 their joint offices were in Berne, Switzerland; and they were christened the “Bureaux internationaux réunis” (“United International Bureaus”)—the first three initials in “BIRPI.”

Technically, each of these two bureaus (sharing the same overall staff) retained a separate juridical identity and documents from meet-

15 Article 1 of the Berne Convention establishes the “Union” of that multilateral treaty, while Articles 22, 23, and 25 establish the assembly, executive committee, and budgeting of the Union. See Berne Convention for the Protection of Literary and Artistic Works arts. 22–23, 25, opened for signature Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979, S. TREATY DOC. NO. 99-27 (1986) [hereinafter Berne Convention]. In parallel provisions, Article 1 of the Paris Convention establishes the “Union” of that multilateral treaty, while Articles 13, 14, and 16 establish the assembly, executive committee, and budgeting of the Union. See Paris Convention for the Protection of Industrial Property, opened for signature Mar. 20, 1883, as last revised at the Stockholm Revision Conference, July 14, 1967, 21 U.S.T. 1583, 828 U.N.T.S. 305 [hereinafter Paris Convention]. 16 See, e.g., L’UNION INTERNATIONALE POUR LA PROTECTION DES OEUVRES LITTÉRARIES ET ARTISTIQUES, RAPPORT DE LA COMITÉ PERMANENT, DIXIÈME SESSION, MADRID, 25–30 SEPTEMBRE 1961 (1961) [hereinafter DIXIÈME SESSION REPORT] (on file with author); L’UNION INTERNATIONALE POUR LA PROTECTION DES OEUVRES LITTÉRARIES ET ARTISTIQUES, RAPPORT DE LA COMITÉ PERMANENT, HUITIÈME SESSION, MÜNICH, 12–17 OCTOBRE 1959 (1959) (on file with author). 17 ÁRPÁD BOGSCH, SPIRIT AND LAW 120 (2007) (“‘Bureau’ was then the fashionable name for the secretariat of an international organization.”). 18 Id. at 120. 19 My thanks to Daniel Gervais for this point. 20 See RICKETSON, supra note 12, ch. 13, § 13.29, at 725 (describing how Berne Union’s “International Office” began operations on January 1, 1888, under the same administration at the international office of the Paris Union, an interim arrangement that was formalized by the Swiss Federal Council in 1892).

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ings were labeled accordingly.21 The full acronym of the joint bureaus would have been BIRPILA—“Bureaux internationaux réunis pour la protection de la propriété industrielle, littéraire et artistique,” which full name was used in lots of documentation at different points in the organ-ization’s twentieth-century history.22 But the name was just as or more often shortened to the “Bureaux réunis” or BIRPI with the last “I” being “industrielle” (or indeterminate).

Commentators understandably sometimes conflate the “bureaux” with the entire apparatus,23 but keeping the bureaux (or offices) concep-tually separate from the “union” of each convention is important for understanding the story of “intellectual property” at BIRPI–WIPO.

Initial research suggests that in the 1950s the BIRPI staff began a subtle effort to change the last “I” of BIRPI from “industrielle” to “intellectuelle.” The “intellectual property” name was used on docu-ments as early as 1955,24 but this was not a consistent practice. The first 21 See, e.g., L’UNION INTERNATIONAL POUR LA PROTECTION DE LA PROPRIÉTÉ INDUSTRIELLE, ACTES DE LA CONFÉRENCE RÉUNIS A NICE, DU 4 AU 15 JUIN 1957 (1957) (on file with author); L’UNION INTERNATIONAL POUR LA PROTECTION DE LA PROPRIÉTÉ INDUSTRIELLE, ACTES DE LA CONFÉRENCE RÉUNIS A LONDRES, DU 1 MAI AU 2 JUIN 1934 (1934) (on file with author). 22 See, for example, DIXIÈME SESSION REPORT, supra note 16, at 2–4, which is three pages of letterhead for the “Bureaux internationaux réunis pour la protection de la propriété industrielle, littéraire et artistique” with typed text referring to the director-general of the or-ganization using the same name in English and French. Of course, one could also claim that the acronym should have had two “P”s—BIRPPILA. But this does not appear in any documents that the author has uncovered. 23 For example, Christopher May repeatedly refers to “members” of BIRPI, which blurs the reality that the Bureaux réunis was just a secretariat serving the members of the Paris and the Berne Unions. See May, supra note 10, passim; see also WIPO, supra note 7. WIPO, in The Governance Structure of WIPO, supra note 7, at 2, also makes the inaccu-rate statement that the Paris Convention and the Berne Convention “[e]ach provided for a common secretariat, BIRPI.” The original 1886 Berne Convention says nothing about BIRPI. Article 16 provides only that “[a]n International Office shall be established,” 168 Consol. T.S. 185, 191 (“Un office international est institué . . . .”); that it shall be “under the high authority of the Superior Administration of the Swiss Confederation,” id. (“Ce Bureau . . . est placé sous la haute autorité de l’Administration Supérieure de la Condfédération Suisse . . . .”); and that the “functions of this office shall be determined by common accord between the countries of the Union,” id. (“Les attribtuions en sont déterminées d’un commun accord entre les pays de l’Union.”). This last clause provides a basis for the early Berne members—ten countries—to establish the joint Paris–Berne “united” Bureaux. Neither the Paris Additional Act and Inter-pretative Declaration, 1896, nor the Berlin Act, 1908 (Revised Berne Convention for the Protec-tion of Literary and Artistic Works) did anything to elaborate on the “International office.” (The text of Article 16 of the 1886 Convention became Article 22 of the 1908 Convention.) Article 24(1) of the present Berne Convention now provides that “[t]he administrative tasks with respect to the [Berne] Union shall be performed by the International Bureau, which is a continuation of the Bureau of the Union united with the Bureau of the Union established by the International Convention for the Protection of Industrial Property” and that “[i]n particular, the International Bureau shall provide the secretariat of the various organs of the Union.” Berne Convention, supra note 15, art. 15. None of the Berne Convention iterations have ever mentioned BIRPI or BIRPILA by name. 24 BUREAUX INTERNATIONAUX RÉUNIS POUR LA PROTECTION DE LA PROPRIÉTÉ INTELLECTUELLE, CONVENTION DE PARIS, COMITÉ D’EXPERTS, BERNE, 25 AVRIL–3 MAI 1955 (1955) (on file with author).

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consistent practice in moving to “intellectual property” seems to be when the emblem of the Unions, not the bureaux, was changed to read “Unions Internationales . . . Propriété Intellectuelle.” This is visible in the emblem used on documents from at least 1956 onward25:

In the late 1950s, the border of the Unions’ emblem shifts to the industrial-age iconography familiar in the WIPO emblem used from 1970 until 201026:

25 See, e.g., BUREAUX INTERNATIONAUX RÉUNIS POUR LA PROTECTION DE LA PROPRIÉTÉ INDUSTRIELLE, LITTÉRAIRES ET ARTISTIQUES, LA MARQUE INTERNATIONALE: GUIDE DU DÉPOSANT (1956) (on file with the WIPO Library, Geneva, and with the author). 26 See, e.g., BUREAUX INTERNATIONAUX RÉUNIS POUR LA PROTECTION DE LA PROPRIÉTÉ INDUSTRIELLE, LITTÉRAIRES, ET ARTISTIQUES, PERMANENT COMMITTEE RESOLUTIONS, SEVENTH AND EIGHTH SESSIONS (1959) (on file with the WIPO Library, Geneva, and with the author); BUREAUX INTERNATIONAUX RÉUNIS POUR LA PROTECTION DE LA PROPRIÉTÉ INDUSTRIELLE, LITTÉRAIRES, ET ARTISTIQUES, ALLEMAGNE—LOI SUR LES INVENTIONS D’EMPLOYÉS (1958) (on file with the WIPO Library, Geneva, and with the author); BUREAU INTERNATIONAL POUR LA PROTECTION DE LA PROPRIÉTÉ INDUSTRIELLE, CANADA—RÈGLEMENT D’APPLICATION DE LA LOI SUR LES BREVETS (1958) (on file with the WIPO Library, Geneva, and with the author); BUREAU INTERNATIONAL POUR LA PROTECTION DE LA PROPRIÉTÉ INDUSTRIELLE, ETATS-UNIS—LOI DE 1954 SUR L’ENERGIE ATOMIQUE (1958) (on file with the WIPO Library, Geneva, and with the author).

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Yet on these same 1958 and 1959 publications, while the emblem reads “Union Internationale [de] Propriété Intellectuelle,” the “I” re-mains—or had reverted back to—“industrielle” in the written name of the bureaus. During this period there is no question that the official name of BIRPI did not yet include “intellectuelle.”27 In the 1957 agree-ment between BIRPI and the Canton of Geneva, by which Geneva gave BIRPI land for an office in exchange for relocating from Berne, BIRPI is titled “Les Bureaux Internationaux Réunis pour la Protection de la Propriété Industrielle, Littéraires et Artistiques.”28

One could comfortably identify 1963 or 1958 as the point at which the BIRPI staff believed that they had effectively substituted “intellectuelle” in place of “industrielle, littéraire et artistique.” The March 29, 1963 cover letter from the BIRPI director concerning the Stockholm revision of the Berne Convention uses stationary that says “Industrielle, Littéraire et Artistique.”29 But a transition was afoot: the November 1963 report of the Commission of Expert for the Stockholm revision uses “intellectual property.”30 The BIRPI annual “ordre de ser-vice” for January 11, 1963 says “Industrielle, Littéraire et Artistique,” but switches to “intellectual property” in the parallel documents for January 15, 1964 and January 7, 1965.31 The intentional elision–substitution is also visible in a 1962 three volume Lois et traités sur le droit d’auteur published jointly by UNESCO and BIRPILA–BIRPI.32 When the latter organization’s name is written out, the entire name is used (industrial, literary, and artistic), but when the organization’s initials are given, they are just “B.I.R.P.I.,” with no explanation of why the “L.A.” is not pre-sent.33

Alternatively, a strong case could also be made that the BIRPI staff thought that they had achieved their rechristening several years earlier 27 Indeed, many monographs published only in the name of the “bureau” for the Paris Convention—“Bureau international pour la protection de la propriété industrielle”—used the new “intellectuelle” logo. See documents referenced supra note 26 and other documents on file with author. 28 Accord entre la République et Canton de Geneve et les Bureaux internationaux réunis pour la protection de la propriété industrielle, littéraires et artistiques, Apr. 5, 1957 (on file with the WIPO Library, Geneva, and with the author). BIRPI moved from Berne to Geneva in 1960. BOGSCH, supra note 17, at 121. 29 Letter from G.H.C. Bodenhausen to Unidentified Minister (Mar. 29, 1963) (on file with the WIPO Library, Geneva, and with the author). 30 HENRI DESBOIS, UNITED INT’L BUREAUX FOR THE PROTECTION OF INTELLECTUAL PROP., REPORT OF THE COMMITTEE OF EXPERTS ON THE STOCKHOLM CONFERENCE REVISION (1963) (on file with the WIPO Library, Geneva, and with the author). 31 Document available at WIPO Library, Geneva, and relevant pages on file with the author. An “ordre de service” is usually an internal document in an administration explaining some details of organizational governance or function. 32 LOIS ET TRAITÉS SUR LE DROIT D’AUTEUR (1962). 33 1 id. at 1 (describing the book as “Publié conjointement par l’Organisation des Nations Unies pour l’education, la science et la culture (Unesco) et par les Bureaux internationaux réunis pour la protection de la propriété industrielle, littéraire et artistique (B.I.R.P.I.)”).

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in 1958. When the cornerstone was laid in Geneva for the new Bureaux réunis headquarters, it was engraved “U.I.P.P.I. 1958”—“Union Interna-tionale pour la Protection de la Propriété Intellectuelle.”34 This corner-stone is still visible today at the WIPO headquarters. It would have been a serious diplomatic error if the final “I” in that engraving was under-stood by those present in 1958 only as “Industrielle,” yet the Bureaux officials were comfortable leaving “L.A.” (littéraire et artistique) off the cornerstone. Jacques Secrétan’s speech at the laying of this cornerstone repeatedly referred to “intellectual property” in the umbrella sense that we understand it today.35 So arguably the transition was a fait accompli in 1958.

In short, Bogsch was correct that BIRPI became “propriété intellectuelle” in the 1950s or early 1960s, not when BIRPI–BIRPILA was initially formed in the nineteenth century.

II. COPYRIGHT AS OR AS PART OF “INTELLECTUAL PROPERTY”

At the same time, Bogsch was wrong in 1986 if he thought that the

“single adjective ‘intellectual’ was an ingenious innovation” from the man who had been director-general before him. Indeed, Bogsch’s obser-vations that many people thought that “intellectual property was coter-minous with copyright” contained the real kernel of truth. A few years later, WIPO publications got the situation more accurately:

The words “Intellectual Property” in BIRPI’s title came into use much later, in the nineteen-fifties. Before that, “industrial property,” mainly covering the property in inventions (patents), trademarks and industrial designs, and “property in literary and artistic works” (or, in English, “intellectual property” or “copyright”) were the expressions commonly used.36

This passage gives a more accurate picture: when BIRPI made its terminological shift, it was not surprising that many people thought that “intellectual property” meant only droit d’auteur–copyright.37 They

34 BUREAUX INTERNATIONAUX RÉUNIS POUR LA PROTECTION DE LA PROPRIÉTÉ INDUSTRIELLE, LITTÉRAIRES ET ARTISTIQUES, POSE DE LA PREMIERE PIERRE DU BATIMENT DES BUREAUX INTERNATIONAUX A GENEVA, LE 22 JUILLET 1958, at 3, 7 (1958) (on file with the WIPO Library, Geneva, and with the author). 35 Id. at 7. 36 Bogsch, supra note 13, at 21; BOGSCH, supra note 17, at 121. 37 Much thoughtful work has been done on the conceptual, almost spiritual, differences between continental droit d’auteur–derecho de autor and Anglo-American “copyright.” See, e.g., Jane C. Ginsburg, The Concept of Authorship in Comparative Copyright Law, 52 DEPAUL L. REV. 1063 (2003); Elizabeth F. Judge & Daniel Gervais, Of Silos and Constellations: Comparing Notions of Originality in Copyright Law, 27 CARDOZO ARTS & ENT. L.J. 375 (2009). Instead of using an awkward hyphenated phrasing, I will refer to all these national laws giving authors

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were confused because in French and Italian domestic jurisprudence “intellectual property” had sometimes been used to mean just copyright, albeit with conspicuous efforts to push the term toward the modern umbrella concept. There is also some evidence of this double meaning for “intellectual property” among nineteenth- and early twentieth-century common-law jurists.

Much more importantly, “intellectual property” unequivocally meant copyright law to Spanish-speaking jurists because copyright law was and is expressly called “propiedad intelectual” in Spain. These tenta-tive conclusions are based on review of many texts and bibliographies of the period.38 If Bogsch seemed unaware of all this, that may have reflect-ed his own linguistic life, in which English, Hungarian, and German were much more important than Romance languages.39

A. French “Intellectual Property”

There is no question that in nineteenth-century France copyright

(droit d’auteur) was principally known as “literary property” or “artistic property,” that there was regular but much less frequent use of “intellec-tual property,” and that most of the time the phrase was used in the modern umbrella sense or something close to it. But there also appear to be a few texts in France that bore “intellectual property” titles with a narrow, copyright-centric focus.

The limited use of “intellectual property” in nineteenth-century France—in whatever meaning—as compared to literary property can be seen in the bibliography of the Pouillet treatise. Pouillet was one of the principal nineteenth-century copyright-treatise writers in France. In the 1908 edition of the his treatise,40 the extensive bibliography includes a few titles in German, Spanish, English, and Greek, but the vast majority of the listings are works published in France or Belgium during the nineteeth century.41 Of the 275 listings, seventy-three have “literary exclusive rights over original expressions as “copyright” with no slight intended toward the important differences. 38 See infra Appendix B. 39 Bogsch was born in Hungary and became a naturalized American citizen in 1959. See Press Release, WIPO, WIPO Director General Expresses Condolences on Passing of Dr. Árpád Bogsch (Sept. 21, 2004), available at http://www.wipo.int/pressroom/en/prdocs/2004/wipo_pr_2004_389.html; see also BOGSCH, supra note 17, at 236 (commenting that English was Bogsch’s “second mother tongue”). He was not particularly fond of French, although he spoke it. He probably had little knowledge of Spanish or Italian. Interview with Michaly Fiscor, for-mer Assistant Dir.-Gen. of WIPO (Apr. 16, 2009). 40 By that time, the third edition of the treatise had been taken over by Georges Maillard and Charles Claro. See EUGÈNE POUILLET, TRAITÉ THÉORIQUE ET PRATIQUE DE LA PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE ET DU DROIT DE REPRÉSENTATION (Georges Maillard & Charles Claro eds., 3d ed. 1908). 41 See id. bibliog.

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property” or “artistic property” in the title (including works that also cover “industrial property”), while only eight have “intellectual proper-ty” in their titles.42 Some of these appear to have used the phrase in a copyright sense:

• AGATHON DE POTTER, DE LA PROPRIÉTÉ INTELLECTUELLE ET DE LA DISTINCTION ENTRE LES CHOSES VÉNALES ET NON VÉNALES (Brussels 1863)

• J.-T. DE SAINT-GERMAIN, LA PROPRIÉTÉ INTELLECTUELLE EST UN DROIT (Paris, E. Dentu 1858)

• FRÉDÉRIC PASSY, VICTORE MODESTE & PROSPER PAILLOTTET, DE LA PROPRIÉTÉ INTELLECTUELLE: ÉTUDES (Paris, E. Dentu 1859)

• GEORGES GUIFFREY, DE LA PROPRIÉTÉ INTELLECTUELLE AU POINT DE VUE DE DROIT ET DE L’HISTOIRE (Paris, Institut Polytechnique 1862)

Indeed, in 1859 Laboulaye and Guifffrey published a collection of then historic papers on copyright43 that include many references to cop-yrights as “literary property,” but an occasional mention that it was “in-tellectual property,”44 among them an apparent 1777 “request to the king.”45 The interchangeability of the phrases is suggested by the fact that in 1860 Guiffrey published Le propriété littéraire au XVIII siècle and, four years later, Le propriété intellectuelle au point de vue du droit et de l’histoire.46 A mid–nineteenth-century report summarized the termi-nological situation surrounding copyright in France as follows:

Some call it simply right of the authors and artists—others literary and artistic property. Lastly, one of our colleagues—whom an emi-

42 The 1908 Pouillet bibliography can reasonably be considered representative, but it is definitely not complete. For example, of the intellectual property titles listed in the text, the Pouillet treatise misses the Comettant and de Saint-Germain books and the Wurth speech. An additional two titles use “intellectual” in reference to the works being protected by droit d’auteur: ERNEST EISENMANN, LE CONTRAT D’ÉDITION ET LES AUTRES LOUAGES D’OEUVRES INTELLECTUELLES (Paris, F. Pichon 1894) and GEORGES HARMAND, LA COLLABORATION DANS LES OEUVRES INTELLECTUELLES (1901). Id. bibliog., at xxi–xxii. I mention this because one of the points I made in Copyright and Incomplete Historiographies, supra note 1, at 1040, was that we need to recognize that “intellectual” was a word floating around the discussion of copyright generally. A total of ninety-one entries in the Pouillet bibliography have “property” in their titles. See POUILLET, supra note 51, bibliog. Eighteen entries have “property” in their titles without “artistic,” “literary,” “industrial,” or “intellectual”—for example, Étude sur la propriété des oeuvres posthumes, Étude sur la propriété des oeuvres photographiques, etc. See id. 43 LA PROPRIÉTÉ LITTÉRAIRE AU XVIIEME SIECLE: RECUEIL DE PIÈCES ET DE DOCUMENTS (Édouard Laboulaye & Georges Guiffrey eds., Paris, Hachette 1859). 44 Id. at i, 48, 49, 156; id. at 49 (using “intellectual work” for copyrighted work). 45 Id. at 151, 156 (“Requête au Roi et consultations pour la librarier et l’imprimerie de Paris au sujet des deux arrets du 30 août 1777 (1777–1778).”). 46 See VICTOR CAPPELLEMANS, DE LA PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE EN BELGIQUE ET EN FRANCE, at xi, 299 (Paris, Jules Renouard et Comp. 1854) (using “propriété intellectuelle” intermittently—and seemingly unselfconsciously).

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nent senator not so long ago dubbed the living law of the Paris bar in this matter—would like that one made use of the broader expression intellectual property.47

Finally, another indicia of the interchangeability is the formation in 1891 of an umbrella organization for different copyright interests, a trade association called “Syndicat des Sociétés Littéraires et Artistiques pour la Protection de la Propriété Intellectuelle.”48 The use of “intellec-tual property” to mean copyright (and related rights) continued at least occasionally in the twentieth century, as when Belgian commentator Paul Wauwermans began his 1910 commentary on the Berne Conven-tion by describing the Convention as the “[c]ode international de la propriété intellectuelle.”49

Nonetheless, there was clearly substantial opinion in nineteenth-century France that the phrase “intellectual property” should be used in its umbrella sense to identify patents, trademarks, and copyrights as a unified area of law.50 Francophone authors making this use of the term can be traced at least to the 1840s:

• JEAN-BAPTISTE-AMBROISE-MARCELLIN JOBARD, CRÉATION DE LA PROPRIÉTÉ INTELLECTUELLE (Brussels, C. J. de Mat 1843)

• JEAN-BAPTISTE-AMBROISE-MARCELLIN JOBARD, NOUVELLE ÉCONOMIE SOCIALE, OU MONAUTOPOLE INDUSTRIEL, ARTISTIQUE, COMMERCIAL ET LITTÉRAIRE (Paris, Mathias 1844)

• JEAN-BAPTISTE-AMBROISE-MARCELLIN JOBARD, ORGANON DE LA PROPRIÉTÉ INTELLECTUELLE (Paris, Mathias 1851)

• ADOLPHE BREULIER, DU DROIT DE PERPÉTUITÉ DE LA PROPRIÉTÉ INTELLECTUELLE (Paris, Auguste Durand 1855)51

47 M. Perras, Rapport de la loi de 1866 au Corps legislatif, reprinted in 2 FERNAND WORMS, ÉTUDE SUR LA PROPRIÉTÉ LITTÉRAIRE 264, 265 (Alphonse Lemerre ed., Paris 1878) (“Les uns l’appellent simplement Droit des auteurs et artistes,—les autres Propriété littéraire et artistique. Enfin, celui de nos collègues qu’un sénateur éminent signalait naguère comme la loi vivante du barreau de Paris en cette matière, voudrait qu’on se servît de l’expression plus large de Propriété intellectuelle.”). 48 See Letter from Doucet and Sardou (Société des auteurs dramatiques), Hamel (Société des gens de letters), Lermina (ALAI), Humbert (Syndic d l’Association professionnelle des journalists républicains), Souchon (SACEM), and Templier (Syndicat des Editeurs) to Freycinet (president du conseil), de M. Bourgeois (minister de l’instruction publique), M. Ribot (minister des affaires étrangeres) and M. Roche (minister du commerce) 120–21 (Mar. 27, 1891). 49 PAUL WAUWERMANS, LA CONVENTION DE BERNE (REVISÉE A BERLIN) POUR LA PROTEC-TION DES OEUVRES LITTÉRAIRES ET ARTISTIQUES ch. 1, ¶ 1 (1910). 50 See, e.g., ALFRED NION, DROIT CIVILS DES AUTEURS, ARTISTES ET INVENTEURS (Paris, Joubert 1846). This book, a winning doctoral dissertation, clearly uses “intellectual property” as an umbrella concept. Id. at 6, 18–22. 51 The Breulier text must have been widely distributed; it is cited more often in subsequent books and treatises. See, e.g., POUILLET, supra note 40, at 31 n.1; 1 NICOLA STOLFI, LA PROPRIETÀ INTELLETTUALE 4 (2d ed. 1915).

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• COMETTANT, LA PROPRIÉTÉ INTELLECTUELLE AU POINT DE VUE DE LA MORALE ET DU PROGRÈS (Paris, 1862)

• Wurth, De la propriété intellectuelle (1867)52

It is also reasonable to speculate that this meaning was gaining cur-rency toward the end of the nineteenth century. Gustave Huard’s 1903 text used “intellectual property” in the current, umbrella sense.53 In the introduction to his 1879 treatise on literary and artistic property, Pouillet also used the phrase in the modern sense:

This book completes a series of works that we undertook on the spe-cial area that we have taken up the habit of designating, not only in France, but also abroad, under the name of intellectual property, a ti-tle that includes, as one knows, the rights that the law recognizes for the creator of a work from the brain, whether it happens to be an in-dustrial discovery or a literary or artistic work.54

The other books in the series concerned patents, industrial marks, and industrial designs and models.55

Indeed, writing in 1898, English commentator J.F. Iselin attributed the terms “industrial property” and “intellectual property” to the French, with the latter clearly being the modern umbrella concept:

These rights [in intangibles] are in French law comprised under the head of intellectual property (propriété intellectuelle), and this again is divided into literary and artistic property on the one hand, and industrial property on the other. The first of these corresponds almost exactly with what is called in England copyright, except that copyright in designs intended for manufacturing and industrial pur-poses would in France come under the head of industrial property. The French classification has made its way over the continent of Eu-rope and is not without influence in this country . . . .56

Iselin certainly seems well informed about the state of patent laws in various jurisdictions in his day, although his conclusion that the 52 De la propriété intellectuelle: Discours prononcé par M. le procureur général Wurth, à l’audience solennelle de rentrée de la Cour d’appel de Gand, le 17 octobre 1867, 15 LA BELGIQUE JUDICIAIRE 1409 (1867). 53 See, e.g., GUSTAVE HUARD, TRAITÉ DE LA PROPRIÉTÉ INTELLECTUELLE 38 (1903) (discuss-ing the Berne and the Paris Conventions in discussing the characteristic traits of the evolution of rights in relation to intellectual property in the modern epoch). Huard coauthored a book in 1895 titled Répertoire de legislation, de doctrine et de jurisprudence en matière de propriété littéraire et artistique, just a few years before his treatise on intellectual property. 54 POUILLET, supra note 51, intro. to 1st ed., at vix (“Ce livre termine la série des ouvrages que nous avons entrepris sur cette matière spéciale que l’on a pris l’habitude de désigner, non seulement en France, mais encore à l’étranger, sous le nom de Propriété intellectuelle, titre qui comprend, on le sait, les droits que la loi reconnaît à l’auteur sur l’oeuvre sortie de son cerveau, qu’il s’agisse d’ailleurs d’une découverte industrielle ou d’un ouvrage littéraire ou artistique.”). 55 Id. 56 J.F. Iselin, The Protection of Industrial Property, 46 J. SOC’Y ARTS 293, 293 (1898).

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“French classification” of copyright and industrial property subsumed under “intellectual property” had “made its way over the continent of Europe” seems a little simplistic.

Although it cannot be considered a complete dataset or rigorous representative sample, the dominance of “propriété littéraire” (and “propriété industrielle”) over “propriété intellectuelle” may also be seen in the comparative appearance of the phrases in French-language books now in the Google Books database. This is shown in Figure 1 in Appen-dix A.57 Note that “propriété littéraire” and “propriété industrielle” each overshadow the use of “propriété intellectuelle,” so even if the last was being used in the umbrella sense, the umbrella concept was relatively absent from the discourse. Note also that “propriété intellectuelle” and “propriété artistique” have roughly similar levels of use from 1870 until 1910. From 1910 onwards, “propriété intellectuelle” is used more, with its usage taking off in 1980—a moment when we can infer that the um-brella sense of the phrase has taken hold. (France integrated its various patent, copyright, and design laws into a single “intellectual property” code in July, 1992; at that point, the umbrella sense is completely con-firmed.)

B. Italian “Intellectual Property”

While the French have championed much in intellectual property,

contrary to what Iselin wrote in 1898, they might not have been the first, or most enthusiastic, movers on the phrase “intellectual property.” By some measures, “intellectual property,” particularly the notion of copy-right being “intellectual property,” appears to have gained traction earli-er in Spanish and Italian.

As in French, books and monographs in Italian from the mid–nineteenth century forward show that “proprietà intellecttuale” was sometimes understood to be synonymous with the protection offered by copyright law:

• ERMOLAO RUBIERI, SULLA PROPRIETÀ INTELLETTUALE (Florence, M. Cellini e C. 1863)

• GILBERTO GOVI, DELLA PROPRIETÀ INTELLETTUALE (Florence, M. Cellini e C. 1867)

• V. DE FELICE, DELLA PROPRIETÀ INTELLETTUALE, LETTERARIA, SCIENTIFICA, ARTISTICA (1903)

57 See infra Appendix A, Figure 1. Graphical representations of the statistical occurrence of words in the Google Books database can be generated at the Google Books Ngram Viewer, http://books.google.com/ngrams/. The figures shown in Appendix A were generated in early 2012.

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• Amar, Appunti sulla considdetta proprietà intellettuale, II LA LEGGE 2475 (1903)

• Nicola Stolfi, La proprietà intellettuale e la società, 30 IL DIRITTO COMMERCIALE 145 (1911)

• NICOLA STOLFI, LA PROPRIETÀ INTELLETTUALE (2d ed. 1915)

But what may make Italy distinct from France is that official docu-ments were using “intellectual property” to mean copyright. For exam-ple, an April 13, 1913 decree for colonial Libya is captioned “Regio decreto . . . concernente la protezione della proprietà intellettuale ed industriale in Libia,”58 a title that expressly contrasts “intellectual prop-erty” with the industrial property of patents and trademarks. In the 1920s and 1930s, Italian government statistical compendiums on culture seem also to have used “intellectual property” this way.59

As in France, Italian jurisprudence shows conflicting uses of “intel-lectual property.” An 1861 treatise on commerce and “political econo-my” has a section entitled “Teoria della proprietà intellettuale” consider-ing the rights of writers, artists, inventors, and “discoverers.”60 Decades before the Italian decree establishing copyright and patent law in Libya, the Kingdom of Italy had established “l’Ufficio della proprietà intellettuale” (“Office of Intellectual Property”), which was responsible for registrations of patents and trademarks. The Italian Copyright Law of 1925 provided that copyright registration would also be deposited with l’Ufficio della proprietà intellettuale (which by then had moved to the Minister of National Economy), showing a clear awareness of the umbrella concept we use today.61

58 On file with author and available at http://www.ubertazzi.it/it/codice/doc498.pdf. 59 Statistica di alcune manifestazioni culturali italiane nel periodo 1926–30: biblioteche, archivi, proprieta intellettuale, musei e collezioni d’arte, cinematografia, radiofonia, professioni liberali/Istituto poligrafico dello Stato (Roma, 1933); Statistica di alcune manifestazioni cultura-li italiane nel periodo 1931–35: biblioteche, produzione libraria, archivi, proprieta intellettuale, musei e istituti d’arte, cinematografia, radiofonia, professioni liberali/Istituto centrale di statis-tica del Regno d’Italia (Roma, 1937). 60 4 GEROLAMO BOCCARDO, DIZIONARIO DELLA ECONOMIA POLITICA E DEL COMMERCIO 241 (Torino, Sebastiano Franco e Figlie e Comp. 1861). 61 Some of the provisions of the 1925 law mentioning the Office of Intellectual Property are Article 58 (“L’autore di un’opera dell’ingegno o i suoi aventi causa debbono depositare presso l’Ufficio della proprietà intellettuale al Ministero dell’economia nazionale un esemplare dell’opera, con le modalità e nei termini stabiliti dal regolamento.”) (“The author of a work of authorship upon having cause must deposit with the Office of Intellectual Property of the Ministry of National Economy a copy of the work with the modalities and in the terms estab-lished in the regulations.”) and Article 72 (“L’Ufficio della proprietà intellettuale presso il Ministero della economia nazionale vigilerà per l’osservanza delle disposizioni del presente decreto e del relativo regolamento, e all’uopo ha facoltà di richiedere ai privati ed agli enti interessati le notizie e gli atti che ritenga necessari al servizio.”) (“The Office of Intellectual Property of the Ministry of National Economy will monitor for compliance with the provisions of this Decree and its regulations, and to this end it may request of interested individuals and institutions the news and actions it deems necessary.”). The Office is also mentioned in Articles

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C. Spanish “Intellectual Property”

As with French and Italian, “intellectual property” may have start-

ed with an unstable meaning in Spanish (“propiedad intelectual”), but by the end of the nineteenth century it unobscurely meant author’s rights to Spanish jurists. This, in turn, influenced other Spanish-speaking jurisdictions.

One early use in Spanish of “intellectual property”—but one that implies that it was already understood—is the 1845 Ecuador Constitu-tion. Article 118 of the constitution guarantees

the inviolability of intellectual properties; thus those who invent, im-prove, or introduce new means to advance industry have the exclu-sive property in their discoveries and products in accordance with [attribution] 12 of Article 42. The law shall ensure a patent or, or the compensation for losses suffered in case of publication.62

This apparently used “intellectual property” to refer only to patented inventions; the same constitution had another provision allowing the Ecuadorian Congress to establish “exclusive privileges” for “limited times” to apparently what would now be the full range of copyrightable and patentable “progress.”63

But whatever meanings “intellectual property” had in Spanish dur-ing the mid–nineteenth century,64 that meaning shifted—and the use of 59 and 70. See Regio Decreto, 7 novembre 1925, n. 1950 (It.), reprinted in ETTORE VALERIO, DISPOSIZIONI SUL DIRITTO D’AUTORE app., at 527–47 (1930). 62 CONSTITUCIÓN DE LA REPÚBLICA DEL ECUADOR [ECUADOR CONST.] 1845 art. 118, avail-able at http://www.cortenacional.gob.ec/cn/wwwcn/pdf/constituciones/16%201845.pdf (“Ga-rantiza también la inviolabilidad de las propiedades intelectuales; así los que inventen, mejoren o introduzcan nuevos medios de adelantar la industria, tienen la propiedad exclusiva de sus descubrimientos y producciones con arreglo a la atribución 12 del artículo 42; la ley les asegura la patente respectiva, o el resarcimiento por la pérdida que experimenten en el caso de publicar-lo.”). 63 Article 42(12) of the 1845 Ecuador Constitution gave its Congress the power to

[p]romover y fomentar la educación pública y el progreso de las ciencias y de las artes, concediendo con este objeto, por tiempo limitado privilegios exclusivos o las ventajas e indemnizaciones convenientes para la realización o mejora de empresas u obras públicas interesantes a la Nación, o para el establecimiento de artes o industrias desconocidas en el Ecuador.

[to promote and foster public education and the progress of arts and sciences, by granting for limited time exclusive privileges or advantages and suitable indemnifica-tion for the implementation or improvement of public institutions and works valua-ble to the nation or for the establishment of arts or industries previously unknown in Ecuador.]

My thanks to Flavio Arosemena, former head of Ecuador’s copyright office, for his help on this point. 64 See, for example, DON ANDRÉS BLÁS Y MELENDO, DERECHOS CIVILES ARAGONÉS (Madrid, Santos Larxe 1873), a general law book that defines “propiedad intelectual” as “the production

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the phrase intensified—after 1879. In that year Spain promulgated a new copyright law, Ley de 10 de enero de 1879, de la propiedad intelectual, giving rights to authors and translators.65 The prior Spanish copyright law, a royal decree of 1847, had used the phrase “propiedad literaria” although it had also given rights to painters and sculptors.66

“Propiedad literaria” remained in use, but given the name of the Spanish statute, it is not surprising that there were many nineteenth-century books and monographs on copyright that used “intellectual property” in their titles. As a whole, this list reflects both the context in which the Spanish had adapted “intellectual property” as the name for copyright law and, then, the subsequent influence of the statute’s name:

• IGNACIO M. CASADO, DE LA PROPIEDAD INTELECTUAL: DISCURSO PRONUNCIADO EN LA UNIVERSIDAD CENTRAL EL DIA 26 DE FEBRERO DE 1859, EN EL ACTO DE RECIBIR LA SOLEMNE INVESTIDURA DE DOCTOR EN JURISPRUDENCIA (Madrid, V. Matute y B. Compagne 1859)

• JOSE MANUEL MESTRE, DE LA PROPIEDAD INTELECTUAL: DISCURSO PARA EL DOCTORADO (Havana, La Antilla 1863)

• MANUEL DÁNVILA Y COLLADO, LA PROPIEDAD INTELECTUAL: LEGISLACIÓN ESPAÑOLA Y EXTRANJERA (2d ed., Madrid, Imprenta de la Correspondencia de España 1882)

• JULIO DE LAS CUEVAS Y GARCÍA, TRATADO DE LA PROPIEDAD INTELECTUAL EN ESPAÑA (Barcelona, Jose Famades 1893)

• LUIS DE ANSORENA, TRATADO DE LA PROPIEDAD INTELECTUAL EN ESPAÑA (Madrid, Sáenz de Jubera Hermanos 1894) (republished in 1911)

• MANUEL GONZALEZ HONTORIA Y FERNANDEZ LADREDA, LOS CONVENIOS DE PROPIEDAD INTELECTUAL ENTRE ESPAÑA Y LOS PAISES IBERO-AMERICANOS (Madrid, T. Minuesa de los Ríos 1899)

• ANTONIO GARCÍA LLANSÓ, MANUAL DE LA PROPIEDAD INTELECTUAL (1901)

• JOSÉ GASCÓN Y MARÍN, LA PROPIEDAD INTELECTUAL Y LA ADAPTACIÓN DE OBRAS LITERARIAS O MUSICALES POR ÉL CINE SONORO

of the intelligence, ostensibly manifested in a material object such as a book, a lithograph, or a machine,” id. ¶ 359, at 237 (“Propiedad intelectual es la produccion de la inteligencia, manifestada ostensiblemente en un objeto material como un libro, una litografía, una máquina, etc.”). It later describes “intellectual property” as covering the “literary, artistic, and industrial.” Id. (“[Y] en este sentido la propiedad intelectual en su faz literaria, artística é industrial . . . .”). 65 Ley de 10 de enero de 1879, de la propiedad intelectual, GACETA DE MADRID, Jan. 12, 1879, no. 12, at 109 (Spain). 66 Real decreto ordenando la ley sobre propiedad literaria, GACETA DE MADRID, June 15, 1847, no. 4657, at 1 (Spain).

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Y LIMITACIONES DE DERECHO DE PROPIEDAD POR INTERES PUBLICO (1906)

• JULIO LOPEZ QUIROGA, LA PROPIEDAD INTELECTUAL EN ESPAÑA (1918)67

• FRANCISCO GÓNGORA, MANUAL DE LA PROPIEDAD INTELECTUAL (2d ed. 1926)

• JOAQUÍN GUICHOT, TEMAS DE PROPIEDAD INTELECTUAL (1934)

From 1886 onwards the Spanish government’s publication on cop-yright (including copyright registrations) was Boletín de la propiedad intelectual.68 Not surprisingly, the terminology subsequently spread to Latin America:

• JOSÉ GÁNDARA DE VELASCO, LA PROPIEDAD INTELECTUAL (Mexico, Hahneman 1888)

• E. Eisenmann, El movimiento legislativo en materia de propiedad intelectual, I (VI) REVISTA MEXICANA DE LEGISLACIÓN Y JURISPRUDENCIA 217, 267, 359 (1894)69

• Propiedad intelectual, EL TIEMPO (Caracas), April 20, 1898 • Tratado de propiedad intelectual entre la Argentia y España, EL

GLOBO, April 11, 1900 • ERNESTO QUESADA, LA PROPIEDAD INTELECTUAL EN EL DERECHO

ARGENTINO (Buenos Aires, J. Menéndez 1904) • LA PROTECTION DE LA PROPRIÉTÉ INTELLECTUELLE DANS LA

RÉPUBLIQUE ARGENTINE (1911)70 • J. Pederol y Rubí, Las propiedad intelectual española en

Norteamérica, in REVISTA DE LEGISLACIÓN Y JURISPRUDENCIA (1913) • PEDRO C. BREUER MORENO, DERECHO INTELECTUAL COMPARADO

(Buenos Aires, R. Romeu 1921) • SIGFRIDO A. RADAELLI & CARLOS MOUCHET, DELITOS CONTRA LOS

DERECHOS INTELECTUALES: LA LEY ARGENTINA (1935) 67 Listed as “Lopez Quiroga” in the Bayo and Bustamante bibliography, but without “en España.” JUAN GIMENEZ BAYO & LINO RODRIGUEZ-ARIAS BUSTAMANTE, LA PROPIEDAD INTELECTUAL: COMPILACIÓN Y COMENTARIOS DE LAS DISPOSICIONES LEGALES VIGENTES EN ESPAÑA CON SU JURISPRUDENCIA bibliog., at 365 (1949). 68 This entry appears in the Bayo and Bustamante bibliography. Id. bibliog., at 370. 69 The Eisenmann essay was published over three different issues of this journal, hence the three page numbers. See Jose Bellido, Latin American and Spanish Copyright Relations (1880–1904), 12 J. WORLD INTELL. PROP. 1, 36 (2009); Correspondence with Jose Bellido Añon (Aug. 1, 2009) (on file with the author). 70 This title is listed in French and without an author or date in the 1943 Caselli bibliog-raphy. Given the construction of the Caselli bibliography, it may be that Quesada was the title’s author in 1911. EDUARDO PIOLA CASELLI, CODICE DEL DIRITTO DI AUTORE bibliog., at xiv (1943).

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• VICENTE HURTADO MUNOZ, CONSIDERACIONES HISTORICAS SOBRE EL RECONOCIMIENTO INTERNACIONAL DE LA PROPIEDAD INTELECTUAL (1944)

• CARLOS MOUCHET & SIGFRIDO A. RADAELLI, DERECHOS INTELECTUALES SOBRE LAS OBRAS LITERARIAS Y ARTÍSTICAS (Buenos Aires, 1948)

• ESPERABÉ ARTEAGA, LA PROPIEDAD INTELECTUAL DE EN DERECHO INTERNACIONAL (undated, but before 1947)

The impact of the 1879 renaming of Spanish copyright law can be seen in the immediate spike produced in the appearance of “propiedad intelectual” in Spanish-language books now in the Google Books data-base.71 Whether or not the database is a truly representative set, Figure 2 in Appendix A demonstrates exactly what we might expect: a dramatic increase in the use of the phrase “propiedad intelectual” after 1879. There is a subsequent drop-off and a rise again around 1980, when “propiedad intelectual” had become the umbrella concept we use today and “intellectual property” was ascending in all languages. The meteoric post-1879 rise in use of “propiedad intelectual” made that phrase more popular than the older “propiedad literaria,” then the two phrases see-sawed back and forth in popularity, perhaps showing that commenta-tors were responding to the new legal terminology but were not willing to abandon the old phrase.72

In keeping with occurrences of the phrases in published books, it appears that “intellectual property” and “literary property” were used fairly interchangeably in Spanish diplomacy during the end of the nine-teenth century. At the 1886 Geneva Congress of the International Liter-ary and Artistic Association, Mr. Numa Droz described Spain as “a country of ancient literary and artistic culture, where intellectual prop-erty is respected more than in any other place.”73 Spain’s bilateral copy-right treaties with El Salvador (1884)74 and Guatemala (1893)75 use “lit-erary and artistic property” while Spain’s bilateral copyright treaties

71 See infra Appendix A, Figure 2. 72 See infra Appendix A, Figure 3. 73 Alberto Bercovitz, The Relationship Between the Berne Convention and Intellectual Prop-erty Law in Spain, 22 COPYRIGHT: MONTHLY REV. WIPO 345, 347 (1986) (citing BULLETIN DE L’ASSOCIATION LITTÉRAIRE ET ARTISTIQUE INTERNATIONALE, Dec. 1886, at 13). 74 Convenio entre España y la República del Salvador, 23 junio 1884, reprinted in JOSÉ DEL CASTILLO Y SORIANO, MANUAL LEGISLATIVO PROPIEDAD LITERARIA Y ARTÍSTICA 108 (1901). Article 1 mentions “propiedad literaria y artística,” as does Article 10. Id. at 109, 112. 75 Convenio entre España y la República de Guatemala, 25 mayo 1893, reprinted in CASTILLO Y SORIANO, supra note 74, at 154. After enumerating several specific subject matter, i.e., “books,” the treaty states that it provides protection “in general, of all kinds of scientific, literary, and artistic productions.” Treaty Between Guatemala and Spain Concerning Literary, Scientific and Artistic Copyright art. 1, translated in 2 COPYRIGHT LAWS AND TREATIES OF THE WORLD, at Guatemala: Item 6, at 1 (U.N. Educ., Scientific & Cultural Org. et al. eds., 1990).

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with Colombia (1885)76 and Mexico (1895)77 use “intellectual property.” Spain’s bilateral copyright treaty with Costa Rica (1893) uses “literary and artistic property” in the text, but has a protocol between the parties that refers to the treaty itself as an “intellectual property” convention.78 An 1895 exchange of diplomatic letters between Spain and the United States demonstrates American recognition of the Spanish terminology. Both letters—from Spain to the United States on July 6 and from the United States to Spain on July 15—establish reciprocal protection for the citizens of the two countries “in everything relating to intellectual (i.e. artistic and literary) property.”79 A few years later—in 1906—Latin American states formed the “Pan American Union for the Protection of Intellectual and Industrial Property” with offices in Havana and Rio de Janeiro.80 The treaty establishing this organization received only limited ratifications,81 but the terminological contrast between “industrial” and “intellectual” is telling. Consistent with the differing emphases in French and Spanish terminology, references to “intellectual property” are ab-

76 Convenio entre España y la República de los Estados Unidos de Colombia, 28 noviembre 1885, reprinted in CASTILLO Y SORIANO, supra note 74, at 114. Articles 3, 4, and 8 mention “propiedad intelectual.” Id. at 116–18. For an English-language version of this treaty, see Copy-right Treaty Between Colombia and Spain, Nov. 28, 1885, translated in 1 COPYRIGHT LAWS AND TREATIES OF THE WORLD, supra note 75, at Colombia: Item 6. 77 Convenio entre España y la República Mejicana, 10 junio 1895, reprinted in CASTILLO Y SORIANO, supra note 74, at 160. Article 8 mentions “propiedad intelectual.” Id. at 164. 78 Convenio entre España y Costa Rica, 14 noviembre 1893, reprinted in CASTILLO Y SORIANO, supra note 74, at 146. Article 5 mentions “propiedad literaria.” Id. at 148. Article 10 mentions “propiedad literaria y artística.” Id. at 149. The “protocol” describes the entire treaty as the “Convenio de propiedad intelectual entre España y la República de Costa Rica, firmado en San José en 14 de noviembre de 1893.” Id. at 151. Of course, that could be a use of “intellec-tual property” in the umbrella sense—copyright treaty is an intellectual property treaty in the modern sense—but the context seems to indicate the narrow copyright use. For an English-language version of this treaty and protocol, see Copyright Treaty, Nov. 14, 1893, and Protocol, June 20, 1896, with Spain, translated in 1 COPYRIGHT LAWS AND TREATIES OF THE WORLD, supra note 75, at Costa Rica: Item 8. 79 Exchange of Notes at Washington, July 6 and 15, 1895, Between Spanish Minister E. Dupuy de Lôme and U.S. Secretary of State Richard Olney, T.S. No. 342-A, 11 Bevans 597. In Spanish materials, these notes are “Canje de notas estableciendo recíprocamente la equiparación a los nacionales de los ciudadanos respectivos a la concerniente a la propiedad intelectual fechadas en Washington 4 y 15 de julio 1895, Gazeta de Madrid, 9 July 1896.” See Bellido, supra note 69, at 23 & 24 n.36. 80 DENYS P. MYERS, MANUAL OF COLLECTIONS OF TREATIES AND OF COLLECTIONS RELAT-ING TO TREATIES 512 (1922). Note, however, that a 1902 agreement between the United States and Latin American countries uses the phrase “literary and artistic property,” not “intellectual property.” See Convention Between the United States and Other Powers on Literary and Artis-tic Copyrights art. 1, Jan. 27, 1902, 35 Stat. 1934, 1935, 1 Bevans 339, 341. This Convention was ratified by the U.S. Senate in 1908, and the American ratification was deposited the same year. Id. Except for Article 1, the Convention just refers to copyright as “property.” See id. arts. 5, 7, 11, at 1936. 81 Stolfi lists only Costa Rica (October 26, 1908), Guatemala (February 15, 1909), Salvador (December 29, 1909), and Chile (July 27, 1910). STOLFI, supra note 51, at 213 n.2.

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sent from the bilateral copyright agreements between Latin American countries and France during the same period.82

Whereas the 1845 Ecuador Constitution had used “intellectual property” to refer to patents, as the twentieth century progressed other Spanish-speaking jurisdictions began to reflect Spain’s use of “intellec-tual property” to refer to copyright. In 1925, the de facto military gov-ernment in Chile promulgated a new copyright law captioned “propiedad intelectual.”83 In its 1933 consolidation of statutes, Argenti-na entitled its copyright law “Régimen Legal de la Propiedad Intelectual,” whereas the prior 1910 law had been called “Ley sobre Propiedad Científica, Literaria y Artística” (“Scientific, Literary and Artistic Property Law”).84

Such usage continued well into the period when BIRPILA was re-fashioning itself as BIRPI, then WIPO. Writing in 1949, two Spanish copyright experts—Juan Gimenez Bayo and Lino Rodriguez-Arias Bustamante—commented that not only was “propiedad intelectual” the usual and current name for copyright, accepted by the majority of trea-tise writers, but also that it was how copyright was known to the Spanish public.85 To Bayo and Bustamante, “intellectual” was a better characteri-zation than “literary” or “literary and artistic” because copyright also covered narrative works of science and all expressive “production of the spirit.”86 Nonetheless, they expressly recognized that this terminological preference was not shared by other countries.87

82 See, e.g., Treaty of Amity and Commerce Between France and Mexico art. 3, Nov. 27, 1886, 168 Consol. T.S. 319; Declaration Between Bolivia and France for the Reciprocal Protec-tion of Literary, Artistic and Industrial Property, Sept. 8, 1887, 169 Consol. T.S. 459; Conven-tion Between Ecuador and France for the Reciprocal Guarantee of Literary and Artistic Proper-ty, May 9, 1898, 186 Consol. T.S. 263. 83 See Law No. 345, Marzo 17, 1925, DIARIO OFICIAL [D.O.] (Chile) (a diktat from the “de facto government” in power at the time). 84 Law No. 11723, Sept. 28, 1933, [11799] B.O. 2 (Arg.), available at http://www.wipo.int/clea/en/details.jsp?id=82. The prior law was Law No. 7092, Sept. 23, 1910, [1889–1919] A.D.L.A. 797 (Arg.). Argentina maintained this use of “intellectual property” to refer to copy-right only. See, e.g., Decree-Law No. 12063, Oct. 2, 1957, [18500] B.O. 1401 (Arg.). During this period, Uruguay continued to caption its copyright laws as “author’s rights.” See Law No. 9739, Dec. 17, 1937 (Uru.), http://www0.parlamento.gub.uy/leyes/AccesoTextoLey.asp?Ley=09739. 85 BAYO & BUSTAMANTE, supra note 67, at 15 (“Aceptamos la denominación de ‘propiedad intelectual’ para designar este Derecho, por ser la usual y corriente en España (por la que es conocida del público), habiendo sido además, recogida por la mayoría de nuestros tratadistas nacionales, sin que ello signifique que en el orden doctrinal prestemos conformidad a dicha denominación.” (footnote omitted)). 86 Id. at 16. 87 Id. at 19 (explaining that “intellectual property” was the formal name of copyright in neither the Berne Convention nor the national laws of Austria, France, Germany, Holland, Italy, the United States, or the U.S.S.R.). For other Spanish commentators in this period using “intellectual property” exclusively to mean copyright and related rights, see, for example, JUAN MOLAS VALVERDE, PROPIEDAD INTELECTUAL: SUMA JURÍDICA PARA LA PRÁCTICA FORENSE (1962).

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In the 1980s—well after WIPO had solidified the umbrella sense of “intellectual property” internationally—a leading Argentine law journal covering patents and copyright continued to call the former “industrial property” and the latter “intellectual property.”88 Indeed, the very year Bogsch made his comments about terminological confusion (1986), a scholarly monograph on Spanish copyright law, translated and pub-lished in WIPO’s monthly copyright bulletin, referred to Spain’s copy-right law as its “intellectual property law” without any clarification or statement of the broader usage of the phrase emerging internationally.89

And there is a simple reason for that: Spain’s current constitution, promulgated in 1978 with the return of the Spanish monarchy, contin-ues to use the terminology of the 1879 law. The official English-language translation of the Spanish Constitution of 1978 provides that the na-tional government has “exclusive competence” over “[l]egislation on copyright and industrial property,”90 but the Spanish-language original says that the competence is over “[l]egislación sobre propiedad intelectual e industrial.”91 Indeed, current Spanish academic writing and commentary frequently uses “derecho de autor” and “propiedad intelectual” interchangeably; still contrasts “propiedad intelectual” with “propiedad industrial”; and sometimes discusses whether “propiedad intelectual” is just copyright or includes “neighboring rights” related to the exploitation of copyrighted works.92

D. “Intellectual Property” in Nineteenth-Century Common-Law Usage

All this reasonably leads to the question whether “intellectual

property,” when it appeared in English jurisprudence in the nineteenth century, was being used by common-law jurists as another name for

88 See generally 1 REVISTA DEL DERECHO INDUSTRIAL (1979–1989). For volume one, the covers of the first two issues were captioned “Propiedad Intelectual e Industrial, Tecnologia, Competencia, Regimen de la Industria,” which was dropped in the third issue of that year. But all issues separated development in patent and copyright law, calling the latter “intellectual property.” 89 See generally Bercovitz, supra note 73. This article says that it was translated from the Spanish by WIPO. Id. at 351. 90 The official English-language translation of Article 149 is available at http://www.lamoncloa.gob.es/IDIOMAS/9/Espana/LeyFundamental/titulo_octavo.htm. 91 C.E., B.O.E. n. 311, Dec. 29, 1978, tit. 8, ch. 3, art. 149 (Spain), available at http://www.lamoncloa.gob.es/Espana/LeyFundamental/titulo_octavo.htm. By contrast, the most recent constitution of Colombia uses “intellectual property” in the umbrella sense. CONSTITUTIÓN POLÍTICA DE COLOMBIA [C.P.] DE 1991, arts. 62, 150, available at http://confinder.richmond.edu/admin/docs/colombia_const2.pdf; see also ERNESTO RENGIFO GARCÍA, PROPIEDAD INTELECTUAL: EL MODERN DERECHO DE AUTOR 25–26 (1996). 92 See generally PROPIEDAD INTELECTUAL, DERECHOS FUNDAMENTALS Y PROPIEDAD INDUS-TRIAL (Cesar Iglesias Rebollo ed., 2005).

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copyright (and related rights) or as the term for the umbrella concept we have today.

Stuart Banner has traced the use of “intellectual property” in nonjuridical English at least as far back as 1769 and believes that in the English-speaking world “[i]n the eighteenth century, the phrase meant something closer to the sum of knowledge possessed by a person or a society.”93 Professor Banner concludes that by the turn of the nineteenth century, that general meaning was being eclipsed in America by lawyers’ use of the term for exclusive rights in intangibles.94 The question still remains whether individual legal writers were using the phrase to refer to copyright, to patents, or in the modern umbrella sense we have today. On that count, Brad Sherman and Lionel Bently are surely correct in their observation that “intellectual property,” while appearing in policy debates of nineteenth-century England’s legal community, was not used in a consistent way to designate a meaningfully clear area of law.95 An-swering the question of how “intellectual property” was being used is complicated by two other linguistic and conceptual elements. First, nineteenth-century jurists in English would sometimes label the creators of copyrightable works as “inventors”; indeed, this terminology was even used in statutes.96 Second, there was a clear tendency to see designs for manufactures—which we would today consider to be unmistakably copyrightable in the United States—to be a separate area. Designs for manufacture were “industrial art” versus the “literary and artistic” arts.

For example, in an 1840 tract on copyright “in designs and patterns for printing” written for popular audiences in England, James Thomson seems to have used “intellectual property” in this copyright-centric sense.97 The first two appendices to the tract are charts representing the term of protections in England and France, respectively, for “literary property, musical compositions, fine art, and industrial arts.”98 Each chart is headed “INTELLECTUAL PROPERTY,” using the term as an umbrella term for copyright and design protection, but not including technological inventions.99 Earlier in the text, Thomson describes “pro-

93 BANNER, supra note 3, at 23. 94 Id. at 24. 95 BRAD SHERMAN & LIONEL BENTLY, THE MAKING OF MODERN INTELLECTUAL PROPERTY LAW: THE BRITISH EXPERIENCE, 1760–1911, at 95 (1999). 96 See, e.g., International Copyright Act, 1844, 7 & 8 Vict., c. 12 (Eng.) (referring to “Inven-tors or Engravers” of prints). This was also the case with a petition to Parliament circa 1840 addressing proposals to increase the protection given to “inventors and printers of new and original patterns for printing on woven fabric.” JAMES THOMSON, A LETTER TO THE RIGHT HONORABLE SIR ROBERT PEEL, BART. ON COPYRIGHT IN ORIGINAL DESIGNS AND PATTERNS FOR PRINTING 11, app. 3 (Clitheroe, H. Whalley 1840) (on file with author). 97 THOMSON, supra note 96, at app. 1–2. 98 Id. 99 Id. And this, by itself, is not a watertight inference, since the author does not say that the charts are any exhaustive list of what he would have considered “intellectual property.”

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tection of intellectual property of all kinds” as embracing “literary prop-erty, and works of fine and of industrial art.”100 In this phrase “art” seems to be used in the aesthetic sense and not the “useful arts” techno-logical sense. Both Thomson and the petition to Parliament he is refut-ing also refer to the author who “invents” a new print design.101

An 1860 U.K. book on patent and copyright law also impliedly re-fers to “intellectual property” as the realm of copyright.102 On the other hand, English commentator Thomas Turner, writing in 1849, clearly used “intellectual property” in its umbrella sense for patents, copyrights, and design protection.103 And, as discussed above, by 1898 English commentator J.F. Iselin was confident that “intellectual property” was and should be properly used in its umbrella sense, both in France and Britain.104

In the United States the earliest reported decision to use the phrase “intellectual property” seems to be Davoll v. Brown.105 In that 1845 case, Justice Levi Woodbury, riding circuit, used the phrase in reference to a patent. About the same time, an 1850 book on political liberties includ-ed a chapter entitled “Of Intellectual Property,” focusing mainly on au-thors and copyrights, but with some secondary mention of inventors.106

Three decades later, the Supreme Court mentions “intellectual property” for the first time in its opinions. In 1873 in Mitchell v. Tilghman,107 the Court quotes from a letter: “I must be content with wishing that Mr. Tilghman should have the courage to defend his intel-lectual property, that is to say, his honor.”108 As I have discussed previ-ously, the case concerns a patented process and the context of the letter makes me believe that it is referring to defending his patented process and, thereby, the gentleman’s honor (not calling honor a form of “intel-

100 Id. at 51. His earlier uses of “intellectual property” could be interpreted as either a copy-right-centric concept or an overarching umbrella concept, but the former is consistent with the use on page fifty-one and in the heading of the appendices. Id. at 11, 13. 101 Id. at 23. 102 JAMES FRASER, HANDY-BOOK OF PATENT AND COPYRIGHT LAW app. C, at 223 (London, Sampson Low, Son & Co. 1860) (“In 1851 Europe agreed, by International Copyright Treaties, that intellectual property should pass frontiers and sheets of water and still be property.”). 103 THOMAS TURNER, ON COPYRIGHT IN DESIGN IN ART AND MANUFACTURES 75 (London, F. Elsworth 1851) (providing a one-page table illustrating “[c]omparative duration and expense of intellectual property”). 104 See Iselin, supra note 56. 105 7 F. Cas. 197 (C.C.D. Mass. 1845). But Banner has found at least one pre-1845 legislative report using “intellectual property” to refer either to patents or in its umbrella sense. See BAN-NER, supra note 3, at 24. 106 ELISHA P. HURLBUT, ESSAYS ON HUMAN RIGHTS AND THEIR POLITICAL GUARANTEE ch. 10, at 198 (6th ed., New York, Fowler & Wells 1850). The chapter begins: “Property may be physical and tangible, as land and chattels; or it may be intellectual and ideal, as the immediate offspring of the intellect and sentiments, existing in thought or embodied in language.” Id. 107 86 U.S. 287 (1873). 108 Id. at 349.

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lectual property”).109 While these are not the words of any Justice, the letter itself is evidence of the phrase’s popular use—and the Court shows no need to explain that use. During the same period, an 1878 book de-fending the patent system was given the title Thoughts on the Nature of Intellectual Property and Its Importance to the State.110

On the other hand, there are plenty of nineteenth- and early twen-tieth-century occurrences of “intellectual property” in which the writer seems to mean the realm of copyright. Henry Van Dyke’s 1888 tract calling for extension of copyright to foreign authors arguably uses the phrase this way.111 Just two years later—in 1890—Samuel Warren’s and Louis Brandeis’s seminal work on privacy reasoned that “[t]he legal doctrines relating to infractions of what is ordinarily termed the com-mon-law right to intellectual and artistic property, are, it is believed, but instances and applications of a general right to privacy.”112 Apparently “artistic property” or “intellectual property” were assumed to be terms that would be readily understood to refer to a person’s writings. And notice that Warren and Brandeis refer to “intellectual property” as a “common-law right,” which (they likely knew) would not be true of patents. Brandeis used the phrase again in his 1918 dissent in Interna-tional News Service v. Associated Press.113 There he refers to the “estab-lished rules governing literary property” and the plaintiff’s arguments about “uncopyrighted intellectual and artistic property.”114 In 1937 in 109 The passage comes closely after the letter, which says, “If the Messrs. Tilghman wish to draw any profit from their patent, they ought to prosecute him for infringement as soon as possible. Let them think of it seriously.” Id. at 348; see also Hughes, supra note 1, at 1006–07. 110 NATHANIEL S. SHALER, THOUGHTS ON THE NATURE OF INTELLECTUAL PROPERTY AND ITS IMPORTANCE TO THE STATE (Boston, J.R. Osgood & Co. 1878), cited in BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW 3–4 (1967). 111 See HENRY VAN DYKE, THE NATIONAL SIN OF LITERARY PIRACY 14–15 (New York, Charles Scribner’s Sons 1888). Van Dyke does first use the phrase in a translation of the Ger-man phrase “der Schutz des Geistigen Eigenthums,” but does not define the phrase and then uses it in reference to literature in America. 112 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 198 (1890). Warren and Brandeis were arguing for a more profound understanding of common-law copyright than property, i.e., “property” was the established construct against which they were working:

No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. . . . . . . . . . . The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.

Id. at 199, 205. 113 248 U.S. 215 (1918). 114 Id. at 228.

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Waring v. WDAS Broadcasting Station, Inc., the Pennsylvania Supreme Court writes of how “the birth of the printing press made it necessary for equity to inaugurate a protection for literary and intellectual proper-ty.”115 Again, the printing press would not have made patent law neces-sary. In all these cases, “intellectual” is arguably replacing either “liter-ary” or “artistic,” and “intellectual property” is not being understood in its modern, umbrella sense.

On the other side of the Atlantic, copyright-centric uses of “intel-lectual property” continued to occur. Sir Arnold Plant, an economist who made significant contributions to early patent theory, used the phrase this way in his 1953 book The New Commerce in Ideas and Intel-lectual Property.116 According to Lionel Bently, the only LLM course offered at the University of London in 1991 on intellectual property (umbrella meaning) was called “Industrial and Intellectual Property.”117 Occasionally, one still finds such uses of “intellectual property” to mean copyright. For example, in a 2009 non–intellectual property “nutshell” book that otherwise uses “intellectual property” in its umbrella sense, the authors write that the European “Court of Justice has frequently issued significant opinions concerning industrial and intellectual prop-erty rights.”118

E. “Intellectual” Things and the Echo that Remains in Modern Law

A complete historical account of how the phrase “intellectual prop-

erty” arose and was used would probably need to explore how the adjec-tive intellectual was used in descriptions of “literary” or “inventive” pur-suits, by both jurists and nonjurists. As for nonjurists, we could include Nathaniel Hawthorne, who referred to his work as an author as the “in-

115 194 A. 631, 632 (Pa. 1937). The court unquestionably viewed copyright as establishing property rights:

The law has never considered it necessary for the establishment of property rights in intellectual or artistic productions that the entire ultimate product should be the work of a single creator; such rights may be acquired by one who perfects the original work or substantially adds to it in some manner.

Id. at 635. 116 SIR ARNOLD PLANT, THE NEW COMMERCE IN IDEAS AND INTELLECTUAL PROPERTY 6 (1953) (“It has been the custom in informed circles to divide these special property rights into two categories, Intellectual Property embracing those types that are accorded copyright or analogous protection, and Industrial Property covered by patents, registered designs, and trademarks.”). 117 Correspondence from Lionel Bently to author (Apr. 22, 2009) (on file with author). 118 RALPH H. FOLSOM ET AL., INTERNATIONAL TRADE AND ECONOMIC RELATIONS IN A NUT-SHELL 240 (4th ed. 2009). Admittedly, these are American authors, not U.K. authors, discussing European case law.

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tellectual forge” and his “intellectual machinery.”119 In Walden, Henry David Thoreau drew the distinction between the “intellectual” and the “animal,” but in a broad way that would have probably included in-ventive activities as the former.120 Later in the century, Herbert Spencer wrote Education: Intellectual, Moral, and Physical.121 Nothing in these uses would have cut against jurists employing “intellectual property” in its modern, umbrella sense.

Among jurists writing on these subjects, it was not uncommon in the nineteenth century to speak of “intellectual labor.”122 Perhaps more to the point, it was also common to speak of “intellectual creations” and “intellectual productions.”123 Augustin-Charles Renouard used such phrases frequently in his influential 1838 treatise in France.124 Eaton Drone also does this in his influential 1879 treatise on American copy-right law125—and he sometimes says protectable works are the result of “intellectual labor”126—a characterization the Supreme Court embraced

119 NICHOLAS K. BROMELL, BY THE SWEAT OF THE BROW: LITERATURE AND LABOR IN ANTE-BELLUM AMERICA 10 (1993). 120 HENRY DAVID THOREAU, WALDEN 110 (Empire Books 2011) (1854) (describing the woodcutter therein) (“But the intellectual and what is called spiritual man in him were slum-bering as in an infant.”) Thoreau, of course, opposed the Lockean theory of labor and would have opposed any ideas of “owning” literature; Thoreau believed in minimal labor to produce enough food for survival and, at points, seemed to embrace what Nicholas Bromell aptly char-acterizes as an “aesthetics of anorexia.” BROMELL, supra note 119, at 227. 121 HERBERT SPENCER, EDUCATION: INTELLECTUAL, MORAL, AND PHYSICAL (New York, D. Appleton & Co. 1864). 122 THOMAS WEBSTER, ON PROPERTY IN DESIGNS AND INVENTIONS IN THE ARTS AND MAN-UFACTURES 7 (London, Chapman & Hall 1853) (“[O]f the mind or intellectual labour, when embodied in a practical form so as to be available to mankind, whether in books, music, paint-ings, designs, or inventions in the arts and manufactures . . . [have the] peculiar claim derived from the nature of the subject—namely, that the subject-matter of such property did not exist like land, the air, or wild-animals . . . such property is, in the strictest sense of the term, a crea-tion . . . .” (emphasis added)). 123 See, e.g., JOHN SLATER, THE LAW RELATING TO COPYRIGHT AND TRADE MARKS 1–2 (London, Stevens & Sons 1884) (“[T]he owner of every intellectual production has in the fruits of his labour, has for its essence not merely the paper and print of the author, nor the marble block of the sculptor, nor yet again the canvas of the painter; but the performance—considered as an incorporeal creation embodied in material form.” (emphasis added)). 124 1 AUGUSTIN-CHARLES RENOUARD, TRAITÉ DES DROITS D’AUTEURS, DANS LA LITTÉRATURE, LES SCIENCES ET LES BEAUX-ARTS 6, 453 (Paris, Jules Renouard et Comp. 1838) (“produits intellectuels”); id. at 435 (“son être intellectuel”); id. at 226, 436, 474 (“communica-tions intellectuelles”); id. at 228, 443 (“productions intellectuelles”); id. at 451 (“valeur intellec-tuelle du livre”). For an American counterpart, see GEORGE TICKNOR CURTIS, A TREATISE ON THE LAW OF COPYRIGHT 70, 87, 89, 237, 273 (Boston, Charles C. Little & James Brown 1847) (referring to “intellectual” efforts, treasures, and contents). 125 EATON S. DRONE, A TREATISE ON THE LAW OF PROPERTY IN INTELLECTUAL PRODUC-TIONS IN GREAT BRITAIN AND THE UNITED STATES 7, 16, 32, 34 (Boston, Little, Brown & Co. 1879). He seems to use the two phrases “intellectual creation” and “intellectual production” interchangeably. 126 Id. at 8.

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the same year.127 In at least one passage, he implicitly contrasts “intellec-tual productions” with “inventions.”128 Neither Renouard nor Drone uses the phrase “intellectual property.”129 Just a few years later, in 1884, Justice Miller in Burrow-Giles Lithographic Co. v. Sarony justifies copy-right protecting the plaintiff’s photograph by saying it falls into the realm of “original intellectual conceptions”;130 that it is the result of “originality, of intellectual production, of thought”;131 and that it is the product of “plaintiff’s intellectual invention.”132 In 1908 in White-Smith Music Publishing Co. v. Apollo Co., the Supreme Court also expressed the view that “[a] musical composition is an intellectual creation.”133

An echo of copyright being the “intellectual property” may exist in the many references in international copyright law to copyrightable works being “intellectual creations.” Article 2(5) of the Berne Conven-tion, Article 10(2) of the TRIPS Agreement, and Article 5 of the WIPO Copyright Treaty all provide for copyright protection of compilations or anthologies that “by reason of the selection and arrangement of their contents, constitute intellectual creations.”134 Several European Union (EU) directives harmonizing EU copyright law also refer to various kinds of copyrightable works as “intellectual creations.”135 There is also

127 The Trade-Mark Cases, 100 U.S. 82, 94 (1879) (reasoning that under copyright law “writ-ings which are to be protected are the fruits of intellectual labor, embodied in the form of books, printings, engravings, and the like”). 128 DRONE, supra note 125, at 15–16. 129 Renouard generally opposed describing copyright as “property,” presaging the position taken by Belgian commentator Edmond Picard. See, e.g., EDMOND PICARD, DROITS INTELLECTUELS (Clunet 1883). 130 111 U.S. 53, 58 (1884). 131 Id. at 60. 132 Id. at 58–60. This last phrase returning us, of course, to the point that in the nineteenth-century “invention” and “inventors” were used more comfortably to describe what we now call “original expression” and “authors.” 133 209 U.S. 1, 17 (1908). 134 Berne Convention, supra note 15, art. 2(5); TRIPS Agreement, supra note 2, art. 10(2); WIPO Copyright Treaty art. 5, Dec. 20, 1996, S. TREATY DOC. NO. 105-17 (1997). 135 See Directive 2009/24, of the European Parliament and of the Council of 23 April 2009 on the Legal Protection of Computer Programs, art. 1(3), 2009 O.J. (L 111) 16, 18 (EC) (“A com-puter program shall be protected if it is original in the sense that it is the author’s own intellec-tual creation. No other criteria shall be applied to determine its eligibility for protection.” (emphasis added)); Directive 2001/29, of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, § 9, 2001 O.J. (L 167) 10, 11 (EC) (“Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation.” (emphasis added)); Directive 96/9, of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases, art. 3(1), 1996 O.J. (L 77) 20, 25 (EC) (“In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protect-ed as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.” emphasis added)).

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considerable secondary material in the Berne travaux endorsing the view that a protectable “work” is an “intellectual creation.”136

III. THE STAKES IN OLD DEBATES

The truth is that many of our very modern arguments about copy-

right and intellectual property amount to substantial retracing of our predecessors—and repetition of what has already been said by (much) older hands in our subject area. As French legal historian Laurent Pfister wrote in a 2005 article,137 “[f]ar from being as revolutionary as the new technologies, many of the arguments put forward by the opponents of digital property have their roots in the debates that punctuated the birth and formation of author’s rights.”138 In their excellent The Making of Modern Intellectual Property Law, Brad Sherman and Lionel Bently have provided a similarly rich account of the debates in eighteenth- and nine-teenth-century England about the nature and proper duration of literary property.139

136 See, for example, WIPO, Draft Model Provisions for Legislation in the Field of Copyright, ¶ 51–52, at 10, WIPO Doc. No. CE/MPC/I/2-III (Oct. 20, 1988), available at http://www.wipo.int/mdocsarchives/CE_MPC_I_1989/CE_MPC_I_2_III_E.pdf:

Although this is not stated explicitly in Article 2(1) of the Berne Convention, the context in which the words ‘work’ and ‘author’ are used in the Convention—closely related to each other—indicates that only those productions are considered works which are intellectual creations (and, consequently, only those persons are considered authors whose intellectual creative activity brings such works into existence). This is the first basic element of the notion of literary and artistic works. The records of various diplomatic conferences adopting and revising the Berne Convention reflect that the reason why Article 2(1) of the Convention does not state explicitly that works are intellectual creations is that that element of the notion of works was considered to be evident.

For such language from the Rome (1929) and Brussels (1948) revisions of Berne, see DANIEL GERVAIS, LA NOTION D’OEUVRE DANS LA CONVENTION DE BERNE ET EN DROIT COMPARÉ 45–49 (1998). Gervais concludes that “intellectual creation” is synonymous with a work that has “originality” in copyright terms. Id. at 49. See generally 1 SAM RICKETSON & JANE C. GINSBURG, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS: THE BERNE CONVENTION AND BEYOND ch. 8, ¶ 8.87 (2d ed. 2006). 137 Professor Pfister introduced me to his excellent article after I had written the first draft of this Part. I am reassured that he, with a much deeper knowledge of nineteenth-century French copyright jurisprudence, draws much the same conclusions as I have regarding scholars like Renouard, Pouillet, and others. 138 Laurent Pfister, La propriété littéraire est-elle une propriété? Controverses sur la nature du droit d’auteur au XIXème siècle, 250 REVUE INT’L DU DROIT D’AUTEUR 116, 118 (2005). 139 See generally SHERMAN & BENTLY, supra note 95.

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A. Just a Little Bit of History Repeating140

In the nineteenth century, copyright was largely recognized as

“property” in many English-speaking jurisdictions—as well as in legal systems that used French, Spanish, and Italian. Yet an honest account-ing cannot say that the matter about copyright being “property” was ever laid to rest definitely. What is striking is how much the property-or-not debate ebbed and flowed—and arguably always continued, albeit in the background. Indeed, our predecessors in discussions of copyright law had similar thinking to our era about the persuasive power of the “property” label versus alternative conceptualizations of copyright as privilege, granted monopoly, or simple compensatory mechanism. For example, in his 1838 treatise Renouard bluntly says, “Privileges, monop-olies—these words sound bad. The phrase literary property conveys a much better view.”141

These commentators also understood how the “property” label could steer one toward inferences about natural rights and perpetual protection that most did not want to embrace. In 1899, English law pro-fessor Augustine Birrell described the eighteenth-century debates about copyright in both England and France in terms reminiscent of the prop-erty-or-not discussion about copyright that surfaced in U.S. law review articles in the 1990s and 2000s:

Were the rights of authors the creatures first of Royal patronage, and subsequently of social concession, or were they un droit absolu, une propriété? In England, we asked the question in this way—Are the rights of authors property-rights at Common Law or the creatures ei-ther of a prerogative of the Crown or of our Statute Book?142

As Birrell saw it, “[t]he struggle, ‘Property or Privilege,’ had sub-stance in it,”143 mainly because the “property” moniker seemed connect-ed to perpetual and unrestricted rights, whereas if copyright “was not property but privilege, then its term of enjoyment could and would be

140 With apologies to the Propellerheads and the extraordinary Miss Shirley Bassey. See PROPELLERHEADS & SHIRLEY BASSEY, HISTORY REPEATING (DreamWorks 1997). 141 RENOUARD, supra note 124, at 466 (emphasis added) (“Privilèges, monopoles; ces mots sonnent mal: les mots de propriété littéraire recommandent bien mieux une opinion.”). He goes on to imagine the reaction to his own opposition to the “property” concept: “What? You attack property in the name of privilege and monopoly!” Id. (“Quoi! vous attaquez la propriété au nom du privilège et du monopole!”). 142 AUGUSTINE BIRRELL, SEVEN LECTURES ON THE LAW AND HISTORY OF COPYRIGHT IN BOOKS 10–11 (London, Cassell & Co. 1899). 143 Id. at 14.

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measured, limited, restricted, according to the wording of . . . the Act of the Legislature or other document which created it.”144

Birrell gives a fair summation of the debates in France right up un-til the 1880s. In his 1838 treatise, Renouard opposed the use of “literary property” on just the grounds that Birrell described: that the phrase led to the conclusion that the rights in question should be perpetual, com-pletely transmittable, and “inviolate.”145 Renouard believed that authors should have exclusive rights of exploitation for their lifetimes and “for a certain time after their death”;146 nonetheless, he opposed use of “prop-erty” in relation to authors’ rights147 because he believed that property was a matter of natural rights and should be perpetual.148 He expressly disagreed with the many people he viewed as holding a purely instru-mentalist view of property rights.149

A few years later, in 1846, Alfred Nion (at the time probably a doc-toral candidate150) characterized the debate in France as having three groups: (1) those agreeing with Renouard that the author should have exclusive rights, not property, “for services rendered to society”; (2) those who believed that intellectual property should be perpetual, the same as “material property”;151 and (3) “numerous” people who defend-ed an “eclectic theory” that copyright was “property, but a right com-pletely different from other forms of property.”152 More than a decade 144 Id. Although Birrell also suggests, interestingly, that a “property” right based on Lockean notions of labor and occupancy might give an author fewer rights—such as with translations—than positive law eventually did. Id. at 33. Sherman and Bently similarly point out that the term “property” sometimes proved to be a burden to advocates of literary property, who found themselves emphasizing the very limited exclusive rights in literary property. See SHERMAN & BENTLY, supra note 95, at 31 (recounting how Hargrave’s An Argument in Defense of Literary Property emphasizes that “nothing more is meant by the term Literary Property, than . . . the [author’s] sole and exclusive right of multiplying printed copies for sale”). 145 RENOUARD, supra note 124, at 438 (“[C]’est celudi de la propriété avec tous ses caractères juridiques, la transmissibilité, la perpétuité, l’inviolabilité.”); see also id. at 2–3. 146 Id. at 473–75. 147 Id. at 438–43. 148 Id. at 443–44 (“Si je reconnaissais aux droits des auteurs les caractères de la propriété, mon esprit ne serait pas libre de leur en refuser une seule des conséquences.”). 149 Id. at 443. To avoid the “literary property” terminology, Renouard even expressed a preference for the English name “copyright.” Id. at 456 (“L'expression droit de copie, employée par les Anglais et les Allemands, est beaucoup plus juste. Ellé ne confond, ni l'émission pre-mière de la pensée avec sa reproduction, ni la propriété matérielle de chacun des exemplaires d'un ouvrage avec la possession intellectuelle de leur contenu. Elle ne fait-nul obstacle à l'ésta-blissement plus ou moins étendu des droits que les lois peuvent garantir à l'auteur.”). 150 Nion’s book is subtitled as a “winning dissertation in an open competition before the law faculty of the University of Paris”: “Mémoire qui a remporté la premiere Médaille d’or au concours ouvert en 1844, entre les doceurs, devant la Faculté de droit de Paris.” NION, supra note 50. 151 Id. at 19. The first group believed that “le droit d’un auteur n’est que l’indemnité de la prestation du service qu’il rendu à la société,” id., and the second group that “la propriété intellectuelle doit être perpétuelle et entièrement assimilée à la propriété matérielle,” id. 152 Id. at 20 (“[L]e droit des auteurs sur leur oeuvres est un droit de propriété, mais un droit tout différent des autres propriétés.”).

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later, in 1859, the conversation had not advanced at all: a group of French economists had still been asking “is there or is there not intellec-tual property?” and concluded—as many of us would today—that the answer depended on figuring out what “property” meant.153 This dis-course among academics paralleled a vigorous debate in the book trrade itself over these issues.154 In 1879 the French treatise writer Eugène Pouillet—who was “pro” property—was still asking his readers and him-self:

What is the nature of copyright? Is it simply compensation for a ser-vice rendered to the society? Is it a veritable property? This question divides commentators, and the discussion has caused the spilling, one can say, of a flood of ink.155

Pouillet wrote these words in a context where there was increased ambiguity as to what kind of rights French law established. The French copyright laws of 1793156 and 1810 had expressly characterized copy-right as “property,” but the 1866 revision of French copyright law did not.157 (One could make some similar arguments about U.S. statutory law today.)

Pouillet thought that the word “property” while “in other contexts inoffensive” led to the “logic” that “if this is a form of property, why not treat it like other forms of property?”158 Pouillet had a quirky, impres-sively real-politick response: he noted that royal “privilege” was argued by some to be, in effect, perpetual grants to authors and heirs, so that

153 FRÉDÉRIC PASSY ET AL., DE LA PROPRIÉTÉ INTELLECTUELLE: ETUDES 7 (Paris, E. Dentu 1859) (“Y a-t-il, ou n’y a-t-il pas, une propriété intellectuelle? . . . Pour résoudre ce problème, autour duquel on s’est tant tourmenté, une seule chose, à ce qu’il nous semble, est nécessaire à savoir : qu’est-ce que la propriété?”). These writers manifest the debate that Birrell would de-scribe a few decades later, carrying on the privilege-or-property discussion, although firmly on the side of concluding that intellectual works should be protected as property. Id. at 217. They followed a Belgian–French commentator, Victor Cappellemans, who began his 1854 book recognizing the question whether “literary property and artistic property are or are not a prop-erty in the legal and rigorous sense.” CAPPELLEMANS, supra note 46, at I (“En donnant à ce volume le titre qu’il porte, nous n’avons pas voulu indiquer que nous allions ouvrir une discus-sion sur la question de savoir si la propriété littéraire et la propriété artistique sont ou ne sont pas une propriété dans le sens légal et rigoureux du mot”). Cappellemans seems to have had a nuanced view, recognizing copyright as the “youngest” form of property, but “était née du privilége et tenait encore du privilége.” Id. at IV. Cappelleman also cites to an 1851 “épigraphe,” entitled La propriété littéraire n’est pas une propriété, id. at VI n.3, that I have not seen cited anywhere else. 154 CHRISTINE HAYNES, LOST ILLUSIONS: THE POLITICS OF PUBLISHING IN NINETEENTH-CENTURY FRANCE 194–97 (2010). 155 POUILLET, supra note 51, at 25 (“Quelle est la nature du droit d’auteur? Est-ce la simple récompense d’un service rendu à la société? Est-ce une propriété véritable? Cette question divise les auteurs, et sa discussion a fait répandre, on peut le dire, des flots d’encre.”). 156 Pfister, supra note 138, at 125. 157 POUILLET, supra note 51, at 26. 158 Id. at 26–27 n.3 (quoting M. Riché, a “commissaire du gouvernement”).

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the privilege-versus-property debate did not amount to much.159 Today Americans might say exactly the same things about our federal govern-ment’s leasing of land for grazing or mineral extraction, neither of which are supposed to be “property.”160

The goal here is not to summarize nineteenth-century French theo-ry on copyright—Professor Pfister has done a fine job of that—but to point out how familiar the positions are to those thinking about copy-right in a twenty-first–century common-law context. And this was not unique to France; thousands of miles away, an 1863 doctoral candidate in Havana had been asking literally the same thing.161 Renouard thought property was a matter of natural rights and perpetual, so while he be-lieved in a life-plus copyright term and defended exclusive rights against compulsory licensing,162 he felt copyright was not property. Passy, Modeste, and Paillottet thought that copyright was a sui generis form of property but that it should receive perpetual protection.163 Pouillet thought that copyright was property, but did not think that led to any conclusion about the duration of the exclusive rights.

As for Pouillet’s “flood of ink” on the property-or-not-question, it continued and continues—with little apparent progress in the discus-sion. Fifty years after Pouillet, in fascist Italy, the leading copyright scholar of that time and jurisdiction, Ettore Valerio, recognized that copyright has been widely accepted as property but still found himself in the same discussion: should copyright be treated as a privilege from the

159 Id. at 10–12. Somewhat earlier, Renouard had also seen the argument that government-granted “privileges” could be effectively perpetual and that one could argue this would produce the same effect as perpetual property rights. See RENOUARD, supra note 124, at 467. 160 See generally GARY C. BRYNER, U.S. LAND AND NATURAL RESOURCE POLICY 175–78 (1998) (describing process for miners to file claims and “patents” on federal land, how these filed claims or patents “are believed by some to grant absolute rights in holders to do whatever they wish with their land,” but in fact federal government retains significant controls and rights); JAMES R. SKILLEN, THE NATION’S LARGEST LANDLORD: THE BUREAU OF LAND MAN-AGEMENT IN THE AMERICAN WEST 74 (2009) (describing how in the mid–twentieth-century grazing permits for federal land “were bought and sold like property,” that the “privately ap-praised value of a rancher’s base property included the associated grazing permit,” and that “even if the permits were not legal property, they functioned economically as property”); Frank J. Falen & Karen Budd-Falen, The Right to Graze Livestock on the Federal Lands: The Historical Development of Western Grazing Rights, 30 IDAHO L. REV. 505, 506 (1994) (“[A]ccording to both Forest Service and BLM policy, a grazing preference is a mere privilege and is revocable at will. On the other, many ranchers consider their preference to be an equitable estate, a type of property right.”). 161 JOSÉ MANUEL MESTRE, DE LA PROPIEDAD INTELECTUAL: DISCURSO PARA EL DOCTORADO (Havana, La Antilla 1863) (beginning with the question, “La propiedad intelectual es una verdadera propiedad?”). 162 See RENOUARD, supra note 124, at 464–66 (discussing the idea of giving authors “redevances [state payments]” and why it would not work as well as exclusive rights of exploita-tion). 163 See, e.g., PASSY ET AL., supra note 153, passim (arguing that intellectual property is a sui generis form of property, but also that it has the common characteristics of property, inferring from which that it deserves perpetual protection).

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government, as a form of property, or a Kantian personal right?164 Vale-ro had probably read an article published in an Italian law review a few decades earlier, in 1903, entitled Notes on the So-Called Intellectual Property165—a title that reminds us how much the property-or-not de-bate is, for lack of a more optimistic characterization, evergreen.

Although the “property” proponents seem to have prevailed termi-nologically—or have prevailed to this point if you think the struggle continues—those opposed to use of the “property” moniker should take solace in the case of Belgium. In 1883, Belgian jurist Edmond Picard published his Droits intellectuels and specifically argued that the discus-sion was about exclusive “rights,” not “property.”166 Like some of the French jurists mentioned above, Picard believed that the link to the “property” concept was misleading. Picard’s influence has meant that the Belgian legal community apparently has tended to use “rights” more than “property,” ranging from journal and monograph names167 to uni-versity course titles.168

Our predecessors’ debates about copyright were similar to our cur-rent debates at other levels. For example, the debate sometimes took the familiar form of an argument over exclusive control of expressive assets for owners versus access and use of those assets by citizens. In mid–nineteenth-century America the core copyright debate was over interna- 164 VALERIO, supra note 61, at 19–25. 165 “Appunti sulla cosiddetta proprietà intellettuale.” My thanks to Giorgio Spedicato for pointing me to this article. Gerolamo Boccardo had presented similar arguments about copy-right as property in the mid–nineteenth century, concluding that neither it nor patents should be treated as property. BOCCARDO, supra note 60, at 241–42. 166 PICARD, supra note 129. 167 For example, La revue de droit intellectuel– L’ingénieur-conseil has apparently been published under that title since 1911, using “droit intellectuel” in the umbrella sense. According to its publisher

Publiée depuis 1911, la Revue de Droit Intellectuel–L’Ingénieur-Conseil traite de tous les aspects de la propriété intellectuelle au sens large. Cette revue, qui bénéficie d’une large diffusion en Belgique et à l’étranger, présente la jurisprudence récente aux niveaux belge, Benelux et européen, ainsi que de nombreux articles de doctrine relatifs à cette discipline.

Review of Intellectual Property Law, BRYULANT, http://www.bruylant.be/st/fr/per_fiche.php?id=50016&PHPSESSID=10a00386839cc32fb6a0932698e0d7e7 (last visited Oct. 31, 2011); see also TH. SMOLDERS, LES DROITS INTELLECTUELS AU CONGO BELGE (1956) (on file with the author). 168 My thanks to Alain Strowel for this point. E-mail from Alain Strowel to author (July 1, 2009) (on file with author). By contrast to French law, Belgium’s copyright law remains a law of “rights” without “property” in the title. See Loi relative au droit d’auteur et aux droits voisins [Law on Copyright and Neighboring Rights] of June 30, 1994, MONITEUR BELGE [M.B.] [Offi-cial Gazette of Belgium], July 27, 1994, 19297 (as amended by Loi portant modification de la loi du 30 juin 1994 relative au droit d’auteur et aux droits voisins [Law Amending the Law of June 3, 1994 on Copyright and Neighboring Rights] of Apr. 3, 1995, MONITEUR BELGE [M.B.] [Offi-cial Gazette of Belgium], Apr. 29, 1995, 11461). At the same time, the Belgium government handles copyright policy through an “Intellectual Property Office” (Dienst voor de Intellectuele Eigendom–l’Office belge de la Propriété Intellectuelle) in the Ministry of Economy. See ECONOMIE, http://economie.fgov.be/opri-die.jsp (last visited Oct. 31, 2011).

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tional copyright—principally whether the United States should extend federal copyright protection to works of British authors.169 American authors were strong advocates of such protection both because unpro-tected British works undercut the price of American works in the do-mestic market and because protection of British works in the United States would lead to reciprocal protection for American authors in the United Kingdom. In response, the people we would now call “copyright minimalists” attempted to frame the argument as one between greedy authors and an American citizenry economically poor but hungry for knowledge—an argument that had considerable traction.170 On the oth-er side, the people we would call “strong copyright” advocates accused the opponents of international copyright of backward-thinking and appealed to the fairness and justice for the author.171

Debates about copyright in nineteenth-century America and Brit-ain pitted “property” against “monopoly” characterizations,172 pondered 169 Keeping in mind that all unpublished works, domestic or foreign, would be protected under state common law. For example, in Palmer v. DeWitt, 47 N.Y. 532 (1872), New York’s highest court concluded that “[t]he alienage of the author [was] no obstacle to him or his as-signee” in enforcing common-law copyright in an unpublished work. Id. at 540; see also Jane Ginsburg, Une Chose Publique, The Author’s Domain and the Public Domain in Early British, French and US Copyright Law, 65 CAMBRIDGE L.J. 636, 667–68 (2006). 170 For example, an 1838 Senate report concluding that copyright should not be extended to foreign works embraced this argument: “The multiplication of cheap editions of useful books, brought within the reach of all classes, serves to promote the general diffusion of knowledge and intelligence, on which depends so essentially the preservation and support of our free institutions.” S. DOC. NO. 25-494, at 5 (1838); see also BIRRELL, supra note 142, at 35 (discussing Americans who argued against international copyright on the grounds that U.S. citizens were educated, but poorer and needed cheap knowledge). For a general review of this debate, see CATHERINE SEVILLE, THE INTERNATIONALISATION OF COPYRIGHT LAW: BOOKS, BUCCANEERS AND THE BLACK FLAG IN THE NINETEENTH CENTURY (2006). 171 See MELISSA J. HOMESTEAD, AMERICAN WOMEN AUTHORS AND LITERARY PROPERTY, 1822–1869, at 6, 76–102 (2005) (describing 1840s debates over international copyright); CORNELIUS MATHEWS, THE BETTER INTERESTS OF THE COUNTRY IN CONNEXION WITH INTER-NATIONAL COPY-RIGHT (New York, Wiley & Putnam 1843); GRENVILLE A. SACKETT, PLEA FOR AUTHORS AND THE RIGHTS OF LITERARY PROPERTY BY AN AMERICAN (New York, Adlard & Saunders 1838). To be fair, the debate in the mid-1800s did have some elements one does not see today. For example, some pro-copyright people argued that British works were deleterious to the American spirit and, therefore, sought higher prices of the works as a way to curb con-sumption of unhealthy materials. See, e.g., HOMESTEAD, supra, at 76–77 (citing various sources). More generally, there was a greater amount of discourse on copyright as a policy for developing American culture, id., and natural rights were a substantially stronger part of the mix, id. at 83–84. See generally BROMELL, supra note 119. 172 See, e.g., CHARLES L. READE & COMPTON READE, CHARLES READE: A MEMOIR 216 (Lon-don, Chapman & Hall 1887) (“Muddleheads still call copyright a monopoly; and cannot, or will not, see it is intellectual property, and has nothing whatever in common with monopoly; and this fatal misuse of language is a main source of the full injustice to authors at home and abroad.”). James Thomson took a different tact, noting that “monopoly” had been given an “odious and unpopular signification,” then making the rhetorically uphill argument that “COP-YRIGHT is MONOPOLY in its best sense.” THOMSON, supra note 96, at 24–25; see also CATHERINE SEVILLE, LITERARY COPYRIGHT REFORM IN EARLY VICTORIAN ENGLAND: THE FRAMING OF THE 1842 COPYRIGHT ACT intro. (1999) (discussing the different terminology employed by advo-cates and opponents in U.K. debates about copyright term extension in the 1830s and 1840s).

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the nature of transformative works like abridgements,173 saw claims that uncompensated distribution benefited authors reputationally,174 and argued whether copyright (and its length of term) provided too much incentive.175 Eighteenth- and nineteenth-century France saw opponents to copyright advocating that writers would and should write for “glory and honor” only;176 holding up service-industry examples to show that exclusive rights or copyright were unneeded;177 arguing that copyright protection undermined the widest possible circulation of ideas and ex-pression;178 and recommending the use of infringing copies to increase public education.179 One commentator argued that copyright over books was “an impediment to the development of humanity.”180 Nineteenth-century thinkers on both sides of the Atlantic talked about how authors reworked ideas and themes from the public domain around them.181

173 HOMESTEAD, supra note 171, at 159–63. 174 Id. 175 HENRY C. CAREY, LETTERS ON INTERNATIONAL COPYRIGHT 32–38 (2d ed., New York, Hurd & Houghton 1868); HOMESTEAD, supra note 171, at 67, 78, 83. 176 Pfister, supra note 138, at 129. Jane Ginsburg pointed out that Lord Camden was em-phatically of the same point of view in Donaldson v. Beckett, (1774) 1 Eng. Rep. 837 (H.L.). Camden considered that for “scribblers . . . who teaze the press with their wretched produc-tions; fourteen years is too long a privilege for their perishable trash.” 17 PARL. HIST. ENG. 1000 (1774). Camden also argued that “[i]t was not for gain, that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy of such men to traffic with a dirty bookseller.” Id. Of course, Locke did advocate that authors should have exclusive rights for much longer than fourteen years and use them to traffic with booksellers. See Justin Hughes, Introductory Essay, Locke’s 1694 Memorandum (and More Incomplete Copyright Histori-ographies), 27 CARDOZO ARTS & ENT. L.J. 555, 558–60 (2010). 177 NION, supra note 50, at 8 (discussing the example of doctors, lawyers, and magistrates as professionals selling knowledge or intangibles that did not need property rights). 178 Laurent Pfister, L’oeuvre, une forme originale: Naissance d’une définition juridique (XVIIIeme–XIXeme siècles), in LE PLAGIAT LITTÉRAIRE 245, 254 (Hélène Maurel Indart ed., 2002). 179 Id. (“Certains adversaires de la propriété littéraire vont ainsi jusqua’à justifier les contrefaçons au nom d’un impératif d’instruction publique.” (citing 9 FORTUNÉ-BARTHÉLÉMEY DE FELICE, ENCYCLOPÉDIE, OU DICTIONNAIRE UNIVERSEL RAISONNÉ DES CONNOISSANCES HUMAINES 264–65 (Yverdon 1772)). 180 Pfister, supra note 138, at 131 (citing “L. Wolowski, Cours d’économie politique, reprodu-ced in P.-J. Proudhon, Qu’est-ce que la propriété? Deuxième mémoire sur la propriété, at 16 Oeuvres complètes 101 (Paris, 1938)”). 181 For example, in 1838 Renouard, who believed in exclusive rights of exploitation for the life of the author plus some time thereafter, felt that no one could

deny that the most original writer is a product of his century and the former centu-ries as much . . . that the commons has provided to him the basic ideas that he elabo-rated; that while returning them to the civilization with which it owes them, he dis-charges a duty toward humanity, and pays to his contemporaries and his descendents a debt of gratitude/recognition that he charges against his contemporaries and his ancestors.

RENOUARD, supra note 124, at 436 (“[N]iera-t-il que l’écrivain le plus original est l’eouvre de son siècle et des siècles antérieurs autant, au moins, que de son proper génie; que la domaine générale lui a forni les élémens des idées par lui élaborées; qu’en les rendant à la civilisation à qui il les doit, il s’acquitte d’un devoir envers l’humanité, et paie à ses contemporains et à ses

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Does all this sound familiar? If you think the rhetoric from John Perry Barlow and Wired magazine has been a little pitched at times, in the late 1800s one commentator predicted a second American Civil War over copyright—the eastern publishers against the knowledge- and freedom-seeking souls of the west.182

Of course, generations of thoughtful people debating the patent system have also been repeating many of the same arguments—property or monopoly,183 the value of resources spent on patent examination,184 the need for specialty courts. For those of you who think the modern patent system is in crisis because of patent thickets185 and failures in the disclosure function of the patent system, consider that in 1869, one pa-tent-law advocate acknowledged that “[s]ome say that patents are be-coming so numerous that they cannot keep count of them, and so un-wittingly infringe them.”186

But there is probably nothing particular about intellectual property in this respect. The same sorts of arguments are repeated by different

descendans une dette de reconnaissance dont il est chargé envers ses contemporains et ses ancêtres.”); see also NION, supra note 50, at 10 (“Le domaine public a fourni à l’auteur les élé-ments des idées par lui élaborées.”). Of course, Justice Story made the same point just a few years later. See Emerson v. Davies, 8 F. Cas. 615, 618–19 (C.C.D. Mass 1845) (“The question is not, whether the materials which are used are entirely new, and have never been used be-fore. . . . [T]he plaintiff is entitled to a copy-right, although he may have gathered hints for his plan and arrangement, or parts of his plan and arrangement, from existing and known sources. He may have borrowed much of his materials from others, but if they are combined in a differ-ent manner from what was in use before . . . he is entitled to a copy-right.”). 182 CAREY, supra note 175, at 14. Of course, we’re all too modern to have such fanciful thoughts. See, e.g., John Markoff, The Coming Superbrain, N.Y. TIMES, June 23, 2009, at WK1 (discussing Australian computer researcher Hugo de Garis who predicts global war over the question whether to develop artificial intelligence machines). 183 W. Bridge Adams, Patents and Patent Laws, 1 VAN NORSTRAND’S ECLECTIC ENGINEER-ING MAG. 977 (1869) (“The word ‘monopoly’ is one of exceedingly ill odor with the great mass of the community, and to affix such a name to patents is considered a very clever move on the part of their opponents.”); Iselin, supra note 56, at 299 (“It would be a great thing if they could get people to see that a Patent-law was not a monopoly at all, and had nothing to do with mo-nopoly. It was simply permission to do a thing under the obligation of payment to the man who enabled you to do it.”). 184 Iselin, supra note 56, at 298 (comparing invalidation rates in courts in America and Germany, both of which had serious patent examination, with invalidation rates in Switzerland and England, which did not have patent examination, and arguing that resources spent on patent examination did not improve patent quality). 185 See, e.g., Christopher A. Cotropia, The Folly of Early Filing in Patent Law, 61 HASTINGS L.J. 65, 104–05 (2009) (discussing problem of patent thickets); Gideon Parchomovsky & R. Polk Wagner, Patent Portfolios, 154 U. PA. L. REV. 1, 35–36 (2005) (noting that very large numbers of patents make it difficult for even well-organized competitors to digest all patents that might be relevant); Carl Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting, in 1 INNOVATION POLICY AND THE ECONOMY 119, 121 (Adam B. Jaffe et al. eds., 2000) (“Our patent system, while surely a spur to innovation overall, is in danger of im-posing an unnecessary drag on innovation by enabling multiple rights owners to ‘tax’ new products, processes, and even business methods.”). 186 Adams, supra note 183, at 979.

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generations of activists in many fields of human endeavor.187 The same sorts of arguments often should be repeated. Arguments and analyses that failed to persuade in one period may succeed in the next; presuma-bly that is one reason that wise judges write dissents.188 On the other hand, if an argument failed to have the intended effect before, it is fair to ask whether it will fare much better now. At a minimum, this awareness might help the scholarly discourse be a little less rhetorical and predict-able.189

B. A Special Kind of Property

In this long property-or-not debate, each camp has had its champi-

ons in each generation—including a camp that has accepted copyright as a form of property but separated that status from any implications concerning natural rights, perpetual protection, or necessary “contours” to the property right. Those in this school of thought accept copyright as property, while typically emphasizing its special qualities and that prop-erty must sometimes give way to greater social interests. An 1847 edito-rial in The Saturday Evening Post provides one version of this position:

Now, granting that an author has as much and the same right to his book, as the farmer has to the products of his orchard or his field, it does not follow from this, that his right is absolute and without limi-tation. As the rights of property in the latter, may justly upon occa-sion be made to yield to the strong demands of bodily hunger, or na-

187 For example, in describing how the arguments for and against international labor stand-ards are the same as those used in the last century for and against uniform national labor stand-ards in the United States, two commentators noted that “[t]hose who have followed the con-temporary debate on international labor standards must surely come away from this earlier history with a sense that little has changed.” Christopher L. Erickson & Daniel J.B. Mitchell, The American Experience with Labor Standards and Trade Agreements, 3 J. SMALL & EMERGING BUS. L. 41, 46 (1999); see also FREDERICK QUINN, THE FRENCH OVERSEAS EMPIRE 99–100 (2000) (describing how nineteenth-century arguments in France against colonial empire were repeated by writers in the mid–twentieth century during the Algerian crisis). 188 As with Justice Holmes’s dissent in Abrams v. United States, 250 U.S. 616, 624–31 (1919), laying out positions that would eventually prevail in Brandenburg v. Ohio, 395 U.S. 444 (1969), or Harry Blackmun’s dissent in Bowers v. Hardwick, 478 U.S. 186, 199–214 (1986), establishing the groundwork for Justice Kennedy’s majority opinion in Lawrence v. Texas, 539 U.S. 558, 562–79 (2003). 189 In the late 1990s or early 2000s, the U.S. academic literature in copyright had become so predictable that in 2006 a distinguished voice in the field—herself often critical of copyright’s expansion—got up in front of an Association of American Law Schools meeting and said she was tired of reading poorly reasoned law review articles in which the writer obviously “had settled on the answer before coming up with the question.” Jessica Litman, The Politics of Intel-lectual Property, 27 CARDOZO ARTS & ENT. L.J. 313, 317 (2009).

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tional necessity; so may the right of an author in his works, be made to yield before the mental hunger of the masses of society.190

Arguably, there was a widespread recognition in nineteenth-century America that although copyright was property, it was a special form of property. An 1830 U.S. House of Representatives report states that “[t]hough the nature of literary property is peculiar, it is not the less real and valuable.”191 An 1838 U.S. Senate report—expressly saying it was not getting into the natural rights issues—described copyright as “property of a peculiar character, not absolute but special, subject to conditions and limitations.”192

Similarly, during the 1839 debates in the French Assembly about revision of their copyright law, Joseph Marie Portalis, the son of one of the drafters of the French Civil Code, argued that copyright was proper-ty, but this should have no impact on the discussion of duration because “[t]he property right can be limited to varying degrees in its effects without changing its nature.”193 In another variation, nineteenth-century French commentator Eugène Pouillet considered copyright a natural right, but nonetheless subject to extensive, positive regulation: “That this property is of a special nature, that it has required particular regulation, and that, while having its source in natural law, it has de-manded organization different from the organization of ordinary prop-erty, that is obvious.”194

All those commentaries nicely jibe with the spirit evident in the single, simple provision on copyright promulgated in civil codes in Chile and El Salvador in the 1850s: “Productions of talent or genius are

190 Op-Ed., International Copyright, SATURDAY EVENING POST, Apr. 10, 1847, at 2 (on file with author). The editorial goes on to suggest that an author’s relationship to her work is more like a preacher’s to his sermon, in the sense that there is a religious calling to disseminate the sermon. Id. The parallel properly has less resonance now than it would have had in 1847. 191 H.R. REP. NO. 21-3, at 2 (1830) (“Though the nature of literary property is peculiar, it is not the less real and valuable. . . . [T]he literary man . . . writes and . . . labors as assiduously as does the mechanic or husbandman. The scholar who secludes himself, and wastes his life, and often his property, to enlighten the world, has the best right to the profits of those labors: the planter, the mechanic, the professional man, cannot prefer a better title to what is admitted to be his own.”). 192 S. DOC. NO. 25-494, at 2 (1838). 193 Portalis went on to say, “One can be the owner of property in or for a time, the owner of property encumbered with usufruct or the right of use, but one is still the owner.” Pfister, supra note 138, at 166–67 (quoting “Chamber of Peers, session of 25 May 1839, Archives parlemen-taires de 1787 à 1860: Recueil complet des débats législatifs et politiques des chambres françaises, volume 124, at 645 (Mavidal et Laurent eds., 1911)”). 194 POUILLET, supra note 51, at 26–27 (“Que cette propriété soit d’une nature spéciale, qu’elle ait exigé une réglementation particulière, et que, tout en prenant sa source dans le droit naturel, elle ait demandé une organisation différente de l’organisation de la propriété ordinaire, cela est évident; mais en quoi cela touche-t-il son principe?”); see also ÉDOUARD DELALANDE, ÉTUDE SUR LA PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE 102–03 (Paris, A. Marescq Ainé 1879).

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a property of their authors. This type of property shall be governed by special rules.”195

There is something haiku-like about that provision—simple and straightforward, if not profound.196 It allows us to do what we probably should do with the property-or-not debate in copyright law: give it a rest.

CONCLUSION

The phrase “intellectual property” seems to have originated as an

alternative to “literary property” as a name for copyright—particularly in Romance-language jurisdictions. In France, “droit d’auteur” was much more frequently called “literary property,” but the name “intellec-tual property” was also used. In Italy and Spanish-speaking jurisdic-tions, “intellectual property” seems to have had significantly more trac-tion as an official name for copyright and related rights. Through this lens, something becomes apparent that a number of us have overlooked: the occurrences of “intellectual property” in nineteeth- and early twenti-eth-century English-language discussions may sometimes have meant the umbrella concept and sometimes have meant just copyright.

At the same time, there were nineteenth-century commentators in English and French who clearly used “intellectual property” with its current, umbrella-concept meaning. Those uses provided the back-drop—and justification—for the clever, quiet, mid–twentieth-century rebranding of WIPO’s predecessor, BIRPI, in which the final “I” drifted from referring to “industrial” property toward standing for “intellectual” property.

“Intellectual property” is now dominant and ubiquitous as the um-brella name and concept for patents, trademarks, copyrights, neighbor-ing rights, and a variety of other legal tools that protect intangible val-ues. And for those of us whose careers have been entwined with the words “intellectual property,” things could have been worse. There was a proposal in England in 1870 to subsume copyright, patents, and trademarks under a unified law of “Mental Property,” enforced by its own “Court of Mental Property.”197 And that was surely better than the

195 CÓD. CIV. art. 584 (1855) (Chile) (“Las producciones del talento o del ingenio son una propiedad de sus autores. Esta especie de propiedad se regirá por leyes especiales.”). The same provision is found in Article 570 of El Salvador’s Civil Code of 1859, available at http://www.oas.org/dil/esp/Codigo_Civil_El_Salvador.pdf. 196 See generally ROLAND BARTHES, L’EMPIRE DES SIGNES 99–116 (1970) (characterizing Japanese haikus this way). 197 W. Bridge Adams, Patent Laws, 18 J. SOC’Y ARTS 186, 187 (1870).

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proposal that came a decade later that all this stuff should be called “Brain Property.”198

One of the pleasures of academia is consorting with old words and the often majestic ideas they bring; scholars are privileged to keep our intellectual predecessors alive this way. Spending time with these old friends—laws, treaties, books, and monographs of the nineteenth and early twentieth century—one is quickly disabused of the idea that our present generation is the first to understand the vexing problems of copyright, patents, trademarks, designs, and “intellectual property” broadly understood. It is good and healthy to continue the debates our predecessors began, but—particularly in a discourse that feels obliged to footnote all but the most obvious propositions—it is also important to acknowledge all that came before.

198 See EDWARD SAMUELS, THE ILLUSTRATED STORY OF COPYRIGHT (2000) (attributing “Brain property” to Sir Arthur Sullivan in the 1880s). Another overbroad, vague option would be “property in thought.” See MONTAGUE RICHARD LEVERSON, COPYRIGHT AND PATENTS: OR, PROPERTY IN THOUGHT (London, Wildy & Sons 1854).

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APPENDIX A

Figure 1

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Figure 2

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Figure 3

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APPENDIX B

A Note on Method The lists of books presented in this Article come from nineteeth-

and twentieth-century bibliographies as well as card catalogs and physi-cal visits to law-library collections in Bologna; Cambridge, Massachu-setts; Geneva; New York; Paris; Trieste; and Washington. Google Books and the collections it reflects have also been an important source of ma-terial. Many times I have been able to locate the books themselves, but many times not—sometimes not even when a book is listed in a library card catalog. (Around Easter 2009, the law library at the University of Bologna suffered a fire on one floor and some books were undamaged but unavailable when I visited later that spring.) The bibliographies used include:

• VICTOR CAPPELLEMANS, DE LA PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE EN BELGIQUE ET EN FRANCE (Paris, Jules Renouard et Comp. 1854)

• JUAN GIMENEZ BAYO & LINO RODRIGUEZ-ARIAS BUSTAMANTE, LA PROPIEDAD INTELECTUAL: COMPILACIÓN Y COMENTARIOS DE LAS DISPOSICIONES LEGALES VIGENTES EN ESPAÑA CON SU JURISPRUDENCIA (1949)

• EDUARDO PIOLA CASELLI, CODICE DEL DIRITTO DI AUTORE (1943) • EUGÈNE POUILLET, TRAITÉ THÉORIQUE ET PRATIQUE DE LA PROPRIÉTÉ

LITTÉRAIRE ET ARTISTIQUE ET DU DROIT DE REPRÉSENTATION (Georges Maillard & Charles Claro eds., 3d ed. 1908)

• NICOLA STOLFI, LA PROPRIETÀ INTELLETTUALE (1915)

When I have not found a book that was listed in a bibliography, I have, when possible, concluded that it concerned copyright or related rights or patents, copyrights, trademarks, etc. based on context. I also assume that titles listed in bibliographies are more or less accurate—at least in the sense that the authors of these bibliographies would have had no reason to deceive on the questions explored here.

In addition, some of the Spanish-language periodical and newspa-per references came courtesy of the historical research that has been done by Jose Bellido of the University of London.199 I am indebted to Mr. Bellido for that research and for guiding me to Spanish-language bilateral copyright agreements.

199 See Bellido, supra note 69.

a short history of “intellectual property” in relation to copyright

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