Trading Intellectual Property Rights in Europe: From IP Nationalism to International IP

Abstract

This article is part of a wider project funded by the Leverhulme Trust Major Research Fellowship and a forthcoming CUP monograph on Intellectual Property and the Human Rights of Companies in Europe. The project and book seek to retrace the genesis and rationale for the extension of human rights to companies in the First Protocol of the ECHR and to critically assess the normative implications. This article’s original contribution to the existing scholarship is twofold. It shows that European States viewed patents as legal shields against foreign industrial piracy spurred by international trade fairs aimed at showcasing national industrial power and the capture of new markets. Secondly, it documents the legal malleability and indeterminacy of patent rights and the role of courts in providing further definition of these rights largely to the benefit of intellectual property (IP) holders in the nineteenth century. The comparative analysis of French and British policy on patents and prizes in the nineteenth century draws on little studied archival sources on the Great Exhibition of Trades and Manufactures in 1851. The analysis of the case law of English courts on the run up to the adoption of the Paris Convention 1883 illustrates the fuzzy legal boundaries of the objects of ‘intellectual’ property. The ensuing discussion shows how the turn to international IP law to protect national economic interests in reality created an open-ended legal framework which facilitated cross-border protection of private interests and capital.