[Upd-discuss] Re: [A2k] EFF, PK Drop ACTA Suit -- Anyone to Take Up the Case Now?

[Laurent GUERBY]

On Wed, 2009-06-24 at 20:59 -0400, Richard Stallman wrote:
> The term "intellectual property" was used rarely in the 19th century
> and most of the 20th.  As far as I can tell, widespread use began only
> in the 1980s.
>
> I have asked people to check their old law school course catalogs to
> see when the term first appeared there.  I don't have a lot of
> answers, but all of them were 80s or the 90s.

According to wikipedia
http://en.wikipedia.org/wiki/Intellectual_property

<<
Modern usage of the term intellectual property began with the 1967
establishment of the World Intellectual Property Organization (WIPO).
[2] It did not enter popular usage however until passage of the
Bayh-Dole Act in 1980.[9]

The concept appears to have made its first appearance after the French
revolution. In an 1818 collection of his writings, the French liberal
theorist, Benjamin Constant, argued against the recently-introduced idea
of "property which has been called intellectual." [10] The term
intellectual property can be found used in an October 1845 Massachusetts
Circuit Court ruling in the patent case Davoll et al. v. Brown., in
which Justice Charles L. Woodbury wrote that "only in this way can we
protect intellectual property, the labors of the mind, productions and
interests are as much a man's own...as the wheat he cultivates, or the
flocks he rears." (1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No.
3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414). The statement that
"discoveries are...property" goes back earlier. Section 1 of the French
law of 1791 stated, "All new discoveries are the property of the author;
to assure the inventor the property and temporary enjoyment of his
discovery, there shall be delivered to him a patent for five, ten or
fifteen years."[11] In Europe, French author A. Nion mentioned propri=C3=A9=
t=C3=A9
intellectuelle in his Droits civils des auteurs, artistes et inventeurs,
published in 1846.

The concept's origins can potentially be traced back further. Jewish law
includes several considerations whose effects are similar to those of
modern intellectual property laws, though the notion of intellectual
creations as property does not seem to exist =E2=80=93 notably the principl=
e of
Hasagat Ge'vul (unfair encroachment) was used to justify limited-term
publisher (but not author) copyright in the 16th century.[12] The Talmud
contains the prohibitions against certain mental crimes (further
elaborated in the Shulchan Aruch), notably Geneivat da'at (=D7=92=D7=A0=D7=
=99=D7=91=D7=AA =D7=93=D7=A2=D7=AA,
literally "mind theft"), which some have interpreted[13] as prohibiting
theft of ideas, though the doctrine is principally concerned with fraud
and deception, not property.


[2]"The modern use of the term intellectual property as a common
descriptor of the field probably traces to the foundation of the World
Intellectual Property Organization (WIPO) by the United Nations." in
Mark A. Lemley, Property, Intellectual Property, and Free Riding, Texas
Law Review, 2005, Vol. 83:1031, page 1033, footnote 4.

[9] Mark A. Lemley, "Property, Intellectual Property, and Free
Riding" (Abstract); see Table 1: 4-5.
http://www.utexas.edu/law/journals/tlr/abstracts/83/83Lemley.pdf

[10] (French) Benjamin de Constant de Rebecque, Collection compl=C3=A8te de=
s
ouvrages publi=C3=A9s sur le gouvernement repr=C3=A9sentatif et la constitu=
tion
actuelle de la France: formant une esp=C3=A8ce de cours de politique
constitutionnelle, P. Plancher, 1818, p. 296.

>>

Old books ressources:

http://www.ipmall.info/hosted_resources/ip_antique_library.asp
ftp://ftp.wipo.int/pub/library/ebooks

AFAIK all "intellectual property" laws share one strong element: they
all define property-like rights for non rival goods - ideas and their
expressions. Then the detail of how each property-like right work is
different, except may be for "counterfeiting" which is uniformly
used when you "violate" one of those rights (and in my country
the maximum penalty is the same for copyright/patents/trademarks).

Sincerely,

Laurent
http://guerby.org/blog