Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790–1909

Abstract

“Intellectual property is all around us,” writes Oren Bracha in his book on the history of American patent and copyright law (p. 1). “We have grown so accustomed to the idea that it is easy to forget how strange it is. But it is strange” (ibid.). Yes, indeed it is. As Bracha shows, from a historical perspective the fundamental assumptions underlying our contemporary understanding of patents and copyrights—that ideas and creative endeavors are a form of property that deserve protection and that inventors and authors have a right to such protection guaranteed by the state—are far from obvious. Instead, they are the result of complex and often-contradictory changes in legal thought occurring over the course of the long nineteenth century. Owning Ideas comprises five chapters. The first provides background on patent and copyright law in seventeenth- and eighteenth-century England and the American colonies. Chapters 2 and 3 then focus on copyright in the nineteenth-century United States, while chapters 4 and 5 examine patent law. The key line of argument traces the transformation of both patents and copyrights from a type of discretionary privilege granted ad hoc to a universal right administered and protected by the state. Intertwined with this new framework were, on the one hand, the legal transformation of ideas and creative endeavors into a type of intangible property and, on the other, the emergence of the author and inventor as legally constituted subjects with a right to this property.