Book Review: Forgotten Intellectual Property Lore

This book review was prepared by this Kat and Vicente Zafrilla Díaz-Marta, Scientific Coordinator for Innovation and IP Projects at the University of Alicante.

In 1881, the later-to-be Supreme Court Justice Oliver Wendell Holmes, wrote in “The Common Law” as follows:

“The life of the law has not been logic, it has been experience. […] In order to know what it is, we must know what it has been, and what it tends to become”.

These words embody the idea behind “Forgotten Intellectual Property Lore” (ed. Shubha Ghosh, Edward Elgar Publishing). This book recounts lesser-known cases and ignored chapters in the history of prominent IP, all of which have shaped IP law as we know it today.

Part I “The lore of property and contract”

In Chapter 1, “Locke´s (own) literary property”, Rebecca Schoff Curtin offers an insightful picture of how Locke´s theoretical notions stood up in the face of his own publication agreements. Regarding theory, the author traces Locke´s philosophical views concerning the renewal of the Licencing Act in 1693. Regarding practice, Locke´s publishing contracts show an evolution from the will to control the text, the format and republication, to a more open approach, including the authority to transfer publication rights (subject to his consent). The only thing missing, perhaps, is connecting the theoretical with the practical.

In Chapter 2, “The lawful piracy of James Joyce´s poems”, Robert Spoo deals with the absence of copyright protection for foreign authors in the US, which lasted, in theory, till 1891, but in practice extended well into the 20th century. As recounted here, this was dealt with by publishing companies first via trade courtesy and later through lawful piracy. Even as late as 1917, James Joyce´s publisher in the US resorted to old-fashioned trade courtesy to appropriately remunerate the author and to successfully fight against the Cornhill Company, which had preferred to rely on the lawful piracy approach to publish Joyce´s “Chamber music”.

Part II “The lore of intangibility”

In Chapter 3, “Pope versus Curll (1741) Revisited: Being A fair and true Account of the Views of certain well-respected Authors on Publishing, Pyracy and Propertie in the Eighteenth Century”, Graham Dutfield and Uma Suthersanen trace various key copyright aspects, such as idea/expression, right to attribution, integrity and even a first attempt to argue for international exhaustion. The chapter shows how the relatively simple Statute of Anne gave rise to a decision that anticipated later ideas and principles.

In Chapter 4, “Neilson v. Harford: Shape and Form in Patent Law”, Jeffrey Lefstin revisits the aforementioned Neilson case, focusing on how an incomplete understanding in subsequent judgements led the US Supreme Court to misquoting this case, in effect arguing almost the opposite from its actual wording. The moral: read the primary sources.

Part III “Forgotten lore of authorship”

In Chapter 5, Brian Frye recounts “The Stolen Poem of Saint Moling”, a medieval Irish legend, where modern-day standards of literary ownership can be found. According to the legend, Saint Moling composed a poem, which was later stolen by Moling’s reciter, Tollchenn. Frye looks at this story as an exemplar of the medieval perception of authorship. Back then, poets were a privileged class. Plagiarism, in turn, made a poem worthless, costing the poet dearly in reputation and remuneration.

Chapter 6, “A Critical Review of the Quest for Global Protection of Traditional Knowledge: Politico-Economic Concerns”, by Kosgei Kembol Alvin, reviews international efforts in developing a sui generis regime for traditional knowledge, traditional cultural expressions and genetic resources. The author argues that a national system, such as in Kenya, could serve as a model for further international steps: such norms lie closer to the needs of indigenous communities.

In Chapter 7, “Folklore vis-à-vis Intellectual Property of Bengal since 17th century: A Study”, Mayuree Sengupta studies the synergism between folklore of Bengal and the modern IP regime. The folklore of Bengal, such as the syrupy dessert of Rosogolla (the preparation of which is also pending as a patent in India), the Khirsapat mango, and the Dhaka muslin are principally protected by geographical indications. While the omission is understandable, it is unfortunate that the author did not address the GI disputes between India and Bangladesh.

Part IV “The lore of Common Law”

In Chapter 8, “Radical Patent Law Reform in a Common Law Enabling System: A Metahistory”, Samuel Ernst, builds a metanarrative by drawing a parallelism between history as a construct-based discipline and the labour of judges in interpreting evidence and precedents. This is true even for US patent law. The author identifies patterns in USSC patent cases – a pendular movement between disengagement and high involvement – whose last episode was the intervention by the USSC to correct the (allegedly) pro-patentee approach of the Federal Circuit.

In Chapter 9, “The Legacy of The Seasons: Confusion and Misdirection”, Mark Perry challenges the efforts to try to find UK copyright origins elsewhere, before the Statute of Anne of 1710, which the author considers rooted in the Crown Privileges and Patents. Perry intercalates abundant (and delightful) quotations from 18th century cases with his own discussion as he makes valuable points concerning the current debate on copyright rationale and scope.

Part V “The lore of courts”

Shubha Ghosh, in Chapter 10, “‘If Music Did Not Pay’: The State Court Roots of Justice Holmes’ Intellectual Property Jurisprudence”, considers IP decisions by Justice Holmes, when he was still serving on the Massachusetts Supreme Judicial Court. The author particularly looks at Holmes’ early decisions on trade marks (including those on protection for colours or use of geographic terms), which have shaped the present day’s contours of trade mark law.

In Chapter 11, “In the Shadow of the Trade-Mark Cases: The 1881 Trademark Act and the Supreme Court”, Zvi Rosen recounts a series of trade mark cases, which led to the adoption of the 1905 US Trademark Act. “Understanding the path, the law took to enactment, shows a number of sources, explaining why that language was used and its purpose in the Act”, says the author, outlining the idea behind the whole book.

Part VI “Lores of intellectual property, human rights and development”

Emmanuel Kolawole Oke covers, in Chapter 12, “Is there a Constitutional Right to Intellectual Property in South Africa?”, the constitutional dimensions of IPRs in South Africa. Although IP does not have a special status under the South African constitution, the author addresses IP rights as intangible property, arguing that plain packaging or similar initiatives should be seen through the lens of the constitutional right to property.

Chapter 13, “Biotechnology Sector in India” by Kshitij Kumar Singh, deals with IP aspects of the Indian biotechnological field. A long-time proponent of a balanced approach to pharmaceutical patents, India has made a full use of the TRIPS flexibilities when amending its Patent Act. Singh considers two cases, Bayer v Natco and Novartis AG v Union of India, to see how compulsory licensing of pharmaceuticals and evergreening of patents are dealt with by the Indian judiciary.

Part VII “Lores of IP during wartime”

Arpan Banerjee and Dana Beldiman, in Chapter 14, “International Trade Mark Enforcement Under the Versailles Treaty: A Case Study of Sanatogen”, discuss how the Bombay High Court applied IP-related provisions of the Versailles Treaty in the Sanatogen case. Enemy-owned IP rights, including the Sanatogen tonic from Germany, were suspended by the British government and a similar approach was recommended to dominion countries, including to India. Although the Versailles Treaty provided for the reinstatement of the pre-war status of IP rights, the Indian legislation from early 1900s did not foresee the existence of Indian trade mark rights as such. A complicated tangle between Paris Convention norms, inspired by the civil law system of France, and a passing off action ensued, a long-forgotten case that deserves to return international IP law books.

In the final chapter, “‘A Process of experimentation’: Intellectual Property, War and Defence in Australasia”, Catherine Bond and Jessica Lai recount the approaches to IP taken during the World War 1 by two other British dominions: Australia and New Zealand, which each echoed Great Britain’s decision to suspend enemy-owned IPRs. Adopting an empirical approach, the authors show how relatively few IP rights were affected by the suspension in the two countries.

The “Forgotten Intellectual Property Lore” will appeal to researchers and IP enthusiasts who wish to understand the foundations of IP law. As Zvi S. Rosen says in Chapter 11: “What is past is not just prologue, it is law”.

Published: 2020
Format: Hardback
Extent: 448 pp.
ISBN 978 1 78897 870 5 (hardback) / 978 1 78897 871 2 (eBook)
Available here (hardback GBP 103.50; eBook GBP 25.00)