Re: origins of "IP"

On 20 October 1996, Mark Lemley <MLEMLEY[_at_]mail.law.utexas.edu> wrote:
>
> I am interested in discovering the origins of the term "intellectual
> property." My sense is that it is of relatively recent origin, at
> least when compared to "patent" and "copyright." Any leads would be
> appreciated.

Mark,

The evidence, in the form of scholarly writings, does suggest that the term is of recent origin. Traditionally legal writers focused on the separate rights which we now identify as IP rights e.g. (in the English common law context):

Copinger on Copyright (1870)
Terrell on the Law of Patents (1884)
Kerly's Law of Trade Marks and Trade Names (1894).

It is only comparatively recently that authors have written treatises which examine IP rights as a body of law. The lack of this wider perspective is, in my view, the explanation for the inconsistencies and conflicts which exist between the different regimes used to protect intellectual property. It also underlies the failure of our legal system to develop a coherent rationale for the protection of intangible property rights.

But to return to your question, the earliest use of the expression "intellectual property" of which I am aware appears in article 2(viii) of the Convention establishing the World Intellectual Property Organization (Stockholm, 14 July 1967 to 13 January 1968). Intellectual Property is defined as including the rights relating to:

• literary, artistic and scientific works
• performances of performing artists, phonograms and broadcasts
• inventions in all fields of human endeavour
• scientific discoveries
• industrial designs
• trade marks, services marks and commercial names and designations
• protection against unfair competition

and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Arguably, from a 1996 perspective, the list is incomplete. It omits, for example, trade secrets and moral rights, although these might be subsumed in the residual category last-mentioned above.

Ross Johnston, Partner     |
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