Law professor Oren Bracha offers a thorough, scholarly treatise on the development of US copyright, intellectual property and patent laws. He covers the major social, economic and political trends and legal concepts behind pivotal court cases. He focuses on ideas at the core of negotiating the ownership of intangible works of the mind in the 1800s. The cases he presents shaped policy and legislation as they established the framework for intellectual property protection. He shows how these cases also relate to broader social trends. Bracha’s nuanced, though academic, overview provides excellent background and analysis for laypeople.
Intellectual property (IP) protection changed from a “discretionary privilege” to a “universal right” during the 1800s.
The ownership of knowledge as property in the United States developed slowly, in tandem with the nation’s political, economic and social development. Understanding IP requires having a vision of ideas as a “motivating force.” Intellectual property has two main areas: copyright and patent protection. Patents first developed as exclusive economic privileges in 15th-century Italian republics. In England, patents were a discretionary royal prerogative monarchs used to encourage new industries; some patents showed no new technology.
In the United States, legislatures – rather than the crown – granted these privileges. The American colonies had no standard patent award practice. Their disjointed systems remained in place until the Patent Act of 1790, the first national patent law. As the United States sought to establish an economy separate from its colonial past, the government used patent grants to emphasize technological innovation. This meant shifting the focus for patents away from privileges within...
Oren Bracha, SJD, is professor of law at the University of Texas and a leading scholar in the fields of intellectual property and legal history.