A Short History of "Intellectual Property" in Relation to Copyright

A Short History of "Intellectual Property" in Relation to Copyright

By Justin Hughes*

*Professor of Law, Benjamin N. Cardozo School of Law, New York. 

Excerpt from A Short History of "Intellectual Property" in Relation to Copyright, 33 Cardozo L. Rev. 1293 (April, 2012)


In the corridors of law firms, industry, or government it would not be controversial to say copyright is intellectual property. But you are now in the pages of a law journal, and on the printed academic page almost anything can be the subject of healthy contest. Of course, the proposition that copyright is intellectual property is too behaviorally true - that's what people say - for a direct assault, but a wide variety of commentators have expressed concerns about calling the exclusive rights of copyright (or patents) a form of "property." As part of this critique, some commentators have claimed that "intellectual property" is a relatively new concept, implying that this unpedigreed concept has itself aided the strengthening of the laws that fall under it.

Elsewhere I have provided two responses to these claims. First, there is no question that "intellectual property" was a moniker used much earlier and more frequently than these commentators have acknowledged. Second, regardless of the use of "intellectual property," copyright was always called "literary property." So if the concern is the persuasive power of "property," it does not matter whether copyright was viewed as "literary property" or "intellectual property." 1 The only way "intellectual property" would make a difference would be if the development of this umbrella concept for patent, copyright, trademark, and design protection somehow strengthened one or more of those laws. That is certainly possible, and ...

Sign in with your Lexis.com ID to access the full text of this article.

Click here to order the full text of this article if you do not have a Lexis.com ID


Sign in with your Lexis.com ID to access Copyright Law resources on Lexis.com or any of these Mathew Bender Copyright Law publications. 

Click here to order Copyright Law treatises/resources and Mathew Bender publications. 

LexisNexis Publications:

View the LexisNexis Catalog of Legal and Professional Publications

LexisNexis eBooks

Click here for a list of available LexisNexis eBooks.

Click here to learn more about LexisNexis eBooks.

For more information about LexisNexis products and solutions connect with us through our corporate site.