[Guest Book Review] IP Before IP

The IPKat has received and is pleased to host this review of IP before IP: Exercising and Protecting Creations and Inventions before the Modern IP Regime (Edward Elgar 2026) by Neil J. Wilkof. This book review has been prepared by Katfriend Angela Fox (Partner, Mishcon de Reya LLP). 

Here is what Angela writes:

Legal history books abound, but works exploring the highways and byways of the history of pre-modern ‘IP’ are few and far between. It is therefore refreshing that Neil Wilkof, who is well-known to many IPKat readers, has written such an interesting and entertaining volume, marrying history with intellectual creation. 

The book is available in
hardback and ebook.

IP Before IP is a slim volume of some 219 pages, but its length belies the scope of its narrative as it succinctly and engagingly explores how authors and creators protected and exercised their rights in their intellectual creations before the advent of modern IP laws. The author illustrates this through the analysis of carefully documented historical episodes from a variety of periods and cultural backdrops, ranging from Biblical times to the Industrial Revolution, from Edinburgh to Baghdad. It includes 16th century German and Italian disputes about artworks, attitudes toward translation of written works across multiple historical periods and the different treatments of multilingualism in the late 19th century, and how authors sought to control their works both in medieval times and soon after the invention of the printing press. The emergence of concepts such as piracy, plagiarism and bowdlerization is also treated with interest and insightful detail. As well, the story of the remaking of Cutty Sark from poem to clipper ship to whiskey, the reconstruction (or not) of Gothic architecture, and early alleged trade secret misuse in the Industrial Revolution, all find their way into Wilkof’s narrative.

The author skilfully highlights the links between the concept of a "taking" in connection with a medieval written work and modern notions of "taking" in connection with modern copyright works and other intellectual property rights, such as patents and trade secrets, without suggesting the former presaged the latter. He also reminds us that the unauthorised copying and sharing of others' intellectual creations, sometimes consisting of their private communications, is hardly new, and that technological transformation brings about new risks and challenges for authors in maintaining control over their works. One of Wilkof's historical vignettes shows how the presence of the printing press in Renaissance times enabled recipients of private letters from the great and the good to monetise them by having collections of epistles printed and sold, sometimes to the consternation of the letter-writers. Plus ça change, plus c'est la même chose.  

The author also shows us that successful artists in Renaissance Europe might enjoy name recognition, which could be brought to bear by secular courts to combat third-party copyists. A particularly absorbing section on Albrecht Dürer tells of his legal action in Nuremberg against a foreign merchant who was selling prints of Dürer's woodcuts in front of the town hall, some even bearing Dürer's trademark monogram. The author notes that, in Dürer's time, the use of a monogram might advance the identity of the individual artist qua artist. It was not a guarantee of origin in the modern trademark sense, and one must guard against the risk of viewing historical events through a modern lens. Still, it demonstrates a continuity in the value of such emblems and symbols to creators which continues into the modern age. Ultimately the ruling did not prevent the selling of the prints, but it did forbid the selling of prints that contained Dürer's monogram.   

Another illuminating episode is that of the 16th century Italian painter Paolo Veronese, who experienced the law in a different way. In his case, Wilkof tells us, Veronese had accepted a commission to paint a large fresco for the wall of a Dominican refectory in Venice, depicting a banquet scene involving Jesus and his disciples, but including as well a number of contemporary subjects ranging from a dwarf jester to drunken German soldiers (such anachronisms not being unusual for paintings of the time). The Holy Office of Venice summoned Veronese to an Inquisitorial interrogation, objecting that while the painting appeared to portray the Last Supper, the insertion of non-standard, contemporary figures of the kind included was disrespectful and served to "ridicule" the Church and encourage heretical beliefs. Although Veronese defended his artistic choices, the tribunal ordered him to make "corrections" to the painting. These ultimately took the form, not of changes to the content of the painting, but the addition of two Latin inscriptions, translating to "He Levi made a great feast for Jesus. Luke, Chapter 5", whereby the painting could no longer be characterised as a depiction of the Last Supper. Here the law was controlling art, instead of being wielded by an artist to protect and control his art's use; it is in that sense an early example of state censorship of intellectual creations through the use of names.   

This book will be of interest to any lawyer (IP or otherwise) or student of legal history who is interested in the pre-modern history of intellectual creations, and specifically how authors, artists and other creators protected and asserted rights before legal systems were put in place, primarily to recognise their value as a form of property. It is a story worth telling and well told, packed with thoughtful historical facts and vignettes that draw insightful links between past and present without falling into the trap of looking for a causal nexus between them. Then is then and now is now. The book is to be warmly commended to all who love IP and history. 

Details

Publisher: Edward Elgar

Format: Hardback and eBook

ISBN: 978 1 03533 798 9 

Extent: 236 pages

Further Reading

Readers may also wish to revisit Neil's earlier IPKat essay reflecting on the writing of the book: Creation, grief, guilt, and love.