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
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