Mark Lemley comments at some length on the implications of the term and
its history in this document:
Property, Intellectual Property and Free Riding
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3D582602
(Texas Law Review, Vol. 83, p. 1031, 2005)
He points to the foundation of WIPO as the best-documented origin of
the "modern use of the term:"
"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. See Convention
Establishing the World Intellectual Property Organization art. 2(viii)
(Stockholm, July 14 1967 to January 13 1968). Since that time, numerous
groups such as the American Patent Law Association and the ABA Section
on Patent, Trademark, and Copyright Law have changed their names (to the
American Intellectual Property Law Association and the ABA Section on
Intellectual Property Law, respectively).
"There were uses of the term in the literature well before this time,
especially on the Continent. See, e.g., A. Nion, Droit civils des
auteurs, artistes et inventeurs (1846) (referring to "propriete
intellectuelle"); Davoll v. Brown, 7 F. Cas. 197, 199 (C.C.D.Mass. 1845)
(calling intellectual property =93the labors of the mind,=94 and concluding
that they were =93as much a man=92s own . . . as what he cultivates, or the
flocks he rears=94). These uses do not seem to have reflected a unified
property-based approach to the separate doctrines of patent, trademark,
and copyright, however."
(Footnote 6, page 4)
He presents the following results of a Westlaw FEDCOURTS database search
he conducted April 2, 2004:
Years Instances of Term
=93Intellectual Property=94
1993-2003 3,863
1983-1993 1,510
1973-1983 555
1963-1973 327
1953-1963 303
1943-1953 201
I would point at the passage of the Bayh-Dole Act in 1980, which
essentially turned academic institutions against the main constituency
that advocated what was the traditional, most common view of copyright
before then, a view which recognized that copyright covered works which
were comprised of uncopyrightable elements of raw information -- i.e.,
academia and academic researchers.
1980 clearly correlates with the jump in usage in 1973-1983 and 1983-1993.
The implications of the fact/expression dichotomy were much more
generally appreciated prior to the influx of the term "intellectual
property." I would strongly urge anyone in the field of copyright and
technology to read the entire Feist Publications Supreme Court ruling,
word for word, to get a sense of how far the American copyright
tradition recognizes the right to make use of published information
(http://supreme.justia.com/us/499/340/).
Seth
> -----Original Message-----
> From: michael.davis@law.csuohio.edu
> To: rms@gnu.org
> Cc: "Dean Anderson" <dean@av8.com>, hart@pglaf.org, hart@pobox.com,
> hart@readingroo.ms, ankitoner@gmail.com, gwen@eff.org,
> seth.johnson@realmeasures.dyndns.org, ecommerce@lists.essential.org,
> upd-discuss@lists.essential.org, a2k@lists.essential.org
> Date: Wed, 24 Jun 2009 21:18:05 -0400 (EDT)
> Subject: Re: [Upd-discuss] Re: [A2k] EFF, PK Drop ACTA Suit -- Anyone
> to
> Take Up the Case Now?
>
> > It is difficult to say that the term was used only "rarely" in the
> > 19th
> > century since the entire area was a legal backwater until the time
> > you
> > observe the term was used more broadly, the 1980's or so. The fact
> > that
> > you observe it used more during that time simply reflects that it
> > became
> > more socially important. I introduced it to my classes during the
> 70s
> > and
> > 80s as a "not terribly sexy legal area," because it simply
> wasn't.Now
> > it
> > is of course. But it is simply untenable to claim that the term
> did
> > not
> > accurately portray the received ideas of the field, since its
> > "property"
> > aspects were constantly promoted from the every earliest use of the
> > term,
> > in the 1840s or so. The World Intellectual Property Organization
> > certainly
> > did not coin the term which, by the time it was established, in the
> > 1960s,
> > was already over a hundred years old.
> >
> > The problem with the term is not that it lumps copyright and patent
> > together, and often trademark, because to the extent it does so,
> > those
> > areas share some very important and unique characteristics. They
> all
> > enjoy
> > important and distasteful, and identical, legal characteristics
> > (especially copyright and patent which are almost indistinguishable
> > in the
> > way they foreclose competition). Instead, it is the claim of
> > "property"
> > which masks the fact that they are a legal privilege granted by the
> > public, not a natural product of individual endeavor, and most
> > importantly, are not rights in the sense that property is. At least
> > in
> > theory they can (and should) be taken away just as easily as they
> are
> > granted and, lately (and unfortunately) extended.
> >
> > MD
> >
> >
> >
> > > 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.
> > >
> > >
> > > _______________________________________________
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> > >
> >
> >
> > --
> > Mickey Davis
> > _________________________________
> > Prof. Michael H. Davis
> > Professor of Law
> > Cleveland State Univ. College of Law
> > 1801 Euclid Ave.
> > Cleveland, OH 44115-2214
> > (mailing address: 2121 Euclid Ave. LB 234)
> > 216-687-2228
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