RE: ORIGINS OF IP

I had the opportunity to do some research on the question for my Ph.D. thesis. There might be earlier uses of the term "intellectual property" in other countries, but in France a legal author, Nion used the term
"proprie'te' intellectuelle" in his textbook published in 1846 ("Droit
civil des auteurs, artistes et inventeurs"). I did not find any earlier use (e.g. Kant, Hegel or early legal authors). The expression became common at the end of the XIXth century, with several textbooks entitled
"Proprie'te' Intellectuelle".

Of course, the term "property" alone was used before. In the 18th century the notion of "property" was used in a philosophical way, by analogy in order to give a natural law basis to the claim of authors, publishers and inventors. Later, in the 19th century, once the new rights were secured, it was used by authors representatives and a few lawyers in an attempt to extend the protection granted to the standards of corporeal property: "if copyright is property, then it should be perpetual, without exemptions, etc." However, the majority of legal authors rejected such an assimilation and considered IP as a sui generis type of property (i.e. limited in time, and the regime of which is set in detail in the relevant acts). In France IP statutes still use the term property.

Note that in Continental civil law the characterization as a property right can have legal consequences (too long and boring to develop).

The development of the "moral right" theory in France and Germany in the XIXth century was found incompatible with the notion of property right, which was then the dominant theory (mainly because moral rights where held perpetual and unassignable). Also, some authors refused the concept of an "incorporeal property" (?). As a consequence, they sought new theories, and proposed to consider copyright as a right of personality, a sui generis right, etc. I disagree with these theories and consider copyright as a property right, in a technical way, and that, including moral rights. Several legal authors in France share this view (still a minority, though).

But that's another story.

Hope that helps

Pascal Kamina
Ph.D.(France), L.L.M., Cand.Ph.D., Cambridge (UK) <pkamina[_at_]cyberscope.fr> Received on Sun Oct 27 1996 - 23:39:38 GMT