THE ORIGIN AND DEVELOPMENT

OF THE BRITISH AND

AMERICAN PATENT AND
COPYRIGHT LAWS

ROBERT C. HAUHART, PH.D., J.D.*

CONTENTS
Introduction ........................................... 539
I. Royal Grants of Protection and Monopoly ............ 540
II. The Anti-Monopoly Act and the Patents Exceptions .. 542
III. Copyright in England Before the Statute of Anne ..... 544
IV. The Statute of Anne .................................. 548
V. The Modem Era in Great Britain ..................... 549
VI. Patents and Copyrights in the United States ........... 551
VII. Early Influences on Current Laws ..................... 553
VIII. The Sources of Patent and Copyright Principles ....... 558
C onclusion ............................................. 562

INTRODUCTION
The current patent and copyright laws are wholly statutory in
nature in both Great Britain' and America 2 however, arguably some
vestiges of common law copyright remain in the interstices of current
acts. The American laws derived from the constitutional grant in
* B.S., Southern Illinois University, 1972; A.M., Washington University, 1973; Ph.D.,
University of Virginia, 1982; J.D., University of Baltimore, 1981. Member, Maryland Bar.
Mr. Hauhart is Visiting Associate Professor of Sociology at Towsom State University, Tow-
som, Maryland and conducts a private practice of law in Baltimore.
© Robert C. Hauhart, 1981.
I. Copyright Act, 1956,4 & 5 Eliz. 2, ch. 74 (amended 1981); Patents Act, 1977, ch. 37.
2. Copyright Act of 1976, 17 U.S.C. §§ 101-810 (Supp. V 1981); Patents Act of 1952, 35
U.S.C. §§ 1-293 (1976).
 WHITTIER LAW REVIEW [Vol. 5

article I, section 8, clause 8,3 actually originated from the British

laws extant at the time and the colonial grants made prior to 1790.'
The earliest British patent law that could be said to be a prototype
for the modem patent statute was passed in 16241 as an exception to
the Monopolies Act of the preceding year. 6 The first British copy-
right law was the Statute of Anne.7 However, both patent grants and
copyrights appear to have existed before either of these statutes, al-
beit in some different form, though the exact historical development
is vague, and in some instances, disputed.
This paper attempts to trace the historical development of the
British and American patent and copyright laws with special refer-
ence to jurisprudential antecedents of the current statutes. Con-
cerned as they are with intangible forms and incorporeal rights, the
patent and copyright laws are often viewed by the legal community
as bastard cousins to the "real" civil law of property, contract, and
tort. It is true that the patent and copyright laws embody elements
traceable to all of these, but they are not thereby the less for it. They
are not a hopelessly confused mass of garbled doctrines borrowed
from other realms of the law, but rather the patent and copyright
laws are an amalgam of rights and protections based upon a set of
common problems that developed in a particular historical milieu.
The current acts are direct descendants of the original royal grants,
commercial practices, and industrial growth of sixteenth and seven-
teenth century England.

I. ROYAL GRANTS OF PROTECTION AND MONOPOLY

According to Holdsworth, from as early "as the first half of the

fourteenth century, there are indications that the Crown was [aware]
of the advantages that could accrue from [establishing English]
manufactures."' In 1331 the King granted letters of protection to

3. The constitutional provision provides in part: "The Congress shall have the power
* .to promote the progress of Science and useful arts, by securing for limited times to authors
.
and inventors the exclusive right to their respective writings and discoveries." U.S. CONST. art.
1, § 8, cl.8.
4. Nearly all of the colonies in America made patent grants beginning with Massachu-
setts in 1640. See B.W. BUGBEE, GENESIS OF AMERICAN PATENT AND COPYRIGHT LAW
(1967). South Carolina passed the first state statute, "An Act for the Encouragement of Arts
and Sciences," on March 26, 1784. Id. at 93.
5. Monopolies Act, 1624, 21 Jac. I, ch. 3.
6. The law recited that monopolies were "altogether contrary to the law of this realm."
Monopolies Act, 1624, 21 Jac. I, ch. 3, sched. I.
7. An Act for the Encouragement of Learning, 1709, 8 Anne, ch.19, §§ I-1I.
8. 4 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 344 (3d ed. 1945).
19831 PATENT AND COPYRIGHT LAW

one John Kempe of Flanders, and his companions, in consideration

for teaching methods of weaving in the realm. 9 This grant was later
confirmed by statute.' °
Throughout the remainder of the fourteenth and fifteenth cen-
turies there are examples of similar grants to the woollen and other
industries. The validity of the grants was recognized and would be
upheld if it could be shown that they were clearly for the welfare of
the realm, but as the king was not always above distributing such
grants to court favorites, there were many instances when they would
be set aside."
In 1561 a new system of granting "industrial monopoly
licenses" was introduced into England.' 2 The earliest known in-
stances of like grants appear in Italy, especially Florence and Venice,
about the year 1500."3 According to Hulme, they were introduced
shortly after printers' copyright,' 4 and carried first to the Nether-
lands and thence to England. Acontius, a naturalized Italian, is
credited with first having suggested this method of rewarding inven-
5
tors to the Crown.'
The essence of these grants was that in return for the introduc-
tion of a process formerly unknown in England, the artisan or manu-
facturer was granted a monopoly for using the process for a specified
length of time.' 6 It is important to note that the grant did not create
a monopoly for selling, but rather a monopoly for manufacturing."
It was not until much later that the exclusive sale of rights came to
be regarded as essential to the process as the right to manufacture.'"
Whereas in the middle ages the Crown made the grant and at-
tempted thereby to keep the privileged industry under its control,
under the new system suggested by Acontius the patentee applied for
the grant, and once having received it, was left free to act under the
grant of powers conferred by it.' 9 This was an important change

9. Id.
10. Statue of Edward, 1309, 2 Edw. 3, ch. 5.
11. For instance, where one Peachey was given the sole riglit to sell wine in London, the
grant was treated as clearly illegal. 4 W. HOLDSWORTH, supra note 8, at 344 n.6.
12. B.W. BUGBEE, supra note 4, at 174 n.90.
13. See generally id. at 12-27 (examining Italian developments in period which he be-
lieves have been overlooked by most commentators).
14. Hulme, History of the Patent System, 12 LAW Q. REV. 142-48 (1896).
15. Id. at 148.
16. 4 W. HOLDSWORTH, supra note 8, at 345.
17. Hulme, supra note 14, at 153.
18. 4 W. HOLDSWORTH, supra note 8, at 345.
19. Hulme, supra note 14, at 151.
 WHITTIER LAW REVIEW [Vol. 5

since it presaged a shift in jurisdiction when disputes arose as to

ownership and infringement.
Under the former system, it might have been argued that it was
for the Crown alone to decide what grants were to be made, what
rights they entailed, and how they were to be construed. However,
when the grants came to be made only after application by the aspir-
ing grantee, suitors disputing these grants or their use desired a bet-
ter remedy than an appeal to the source of the grant itself. The
courts, following a common law policy of free trade, were the obvi-
ous alternative. Freedom of trade did not mean the same thing in
sixteenth century England as it does today. The freedom intended
was that from arbitrary restraints. This freedom was not recognized
as an integral part of the common law.2 0 This was fully consistent
with legal views of that period which accepted considerable restric-
tions on freedom when it was deemed to be in the best interest of the
commonwealth. 2 ' Distinct legal rationales were created to provide
grounds for defending patent grants.22
In 1597 the widespread industrial depression had renewed con-
cern over the monarch's distribution of patents. The Queen, in dis-
missing the Parliament, promised that all patents would be
examined to insure the grants were within the law.23 In 1601 a bill
dealing with the matter was introduced into the House of Commons.
The bill questioned the power of the Crown to make patent grants
and dispensations, as well as the nature and extent of the royal pre-
rogative and its relation to the law.24 Queen Elizabeth secured
"abandonment of the bill by. . .promis[ing] to leave the validity of
the patents to the judgment of the common law."' 25 It was in this
context that the case of Darcy v. Allen arose.26

II. THE ANTI-MONOPOLY ACT AND THE PATENTS EXCEPTIONS

The agitation created by the manner in which previous

20. James, HistoricalDevelopment ofthe Law of Business Competition, 35 YALE L.J. 905,
907-33 (1926).
21. 27 HALSBURY LAWS OF ENGLAND 527-29 (1913):
22. See Darcy v. Allin, 74 Eng. Rep. 1131 (K.B. 1602). The plaintiff-grantee of a patent
for the importation of playing cards that had been maintained by the council with difficulty for
many years, sued Allin for infringement of his patent. Id. at 1131-32. The defendant sug-
gested that grants could be justified for some reasonable time if the grantee had introduced a
new invention into the realm and thereby created a new industry. Id. at 1139.
23. 4 W. HOLDSWORTH,supra note 8, at 347.
24. Id. at 348.
25. Id.
26. See supra note 22.
19831 PATENT AND COPYRIGHT LAW

monarchs used their prerogative to issue patents of monopoly did

not abate after Elizabeth's reign ended. As Jenks notes in succinct
fashion: "But when it came to granting monopolies of articles like
soap, playing cards, silver lace, and so forth, not to adventurous
companies, but to Court favorites, who simply made use of their
privileges to sweat the public, popular feeling began to rise. '"27
While Darcy v. Allen laid down some more or less definite rules re-
garding monopolies, James I, Elizabeth's successor, chose not to ob-
serve them and resorted to patent grants as a way to raise money. 2
In 1623 the anti-monopoly fervor peaked and inspired the passage of
an act banning all monopolies.29 There were, however, certain ex-
ceptions written into the final version in 1624.30 These exemptions,
particularly those embodied in clause six, are the basis for both the
modem British and American patent laws. This statute persisted in
substantially original form for over two hundred years.3
The Monopolies Act stated: new monopolies were forbidden
from being granted; the validity of any grant was to be tried at com-
mon law; monetary remedies were available to persons damaged by
illegal or misused grants; and actions for restraint (what we now re-
fer to as injunctions) could also be requested. 2
Certain of the older grants were saved by special inclusion.3
Among these, one may note: charters granted to corporations and
companies "for the maintenance enlargement or ordering of any
trade of merchandise"; privileges extended to printers and the mak-
ers of saltpeter, ordnance, and shot; privileges associated with the
manufacture of allum; and grants connected with the licensing of
taverns. These exceptions were justified under the common law the-

27. E. JENKS, A SHORT HISTORY OF ENGLISH LAW 129 (1912).

28. 4 W. HOLDSWORTH, supra note 8, at 353.
29. Monopolies Act, 1623, 21 Jac. 1, ch. 3. See E. JENKS, supra note 27, at 129.
30. 'E. JENKS, supra note 27, at 129.
31. The first major amendments to the patent law were the Designs Copyright Act of
1842, 5 & 6 Vict., ch. 100, the Designs Copyright Act of 1843, 6 & 7 Vict., ch. 65 and the Patent
Law Amendment Act of 1852, 15 & 16 Vict., ch. 83.
32. Monopolies Act, 1623, 21 Jac. 1, ch. 3, §§ 1-5.
33. Id. at §§ 9-12. Patents, or letters patent (open letter) were one of two forms of chan-
cery enrollment used by the king. These grants, whether of lands, honours, liberties,
franchises, or otherwise, were called "open letters" because they were not sealed, or rolled, but
exposed to open view, with the great seal pendant at the bottom. They were left open because
they were directed to all the king's subjects, making known the award of the grant. Thus, they
differ from the "close rolls" (writs close) which were also letters from the king, sealed by him,
but directed to particular persons for particular purposes. Since they were personal letters or
directives, and therefore not proper objects for public inspection, they were closed and sealed
on the outside. 2 W. BLACKSTONE, COMMENTARIES *346.
 WHITTIER LAW REVIEW [Vol. 5

ory that certain forms of control must be exercised by the Crown in

34
the interest of the realm and its people.
Clause six of the Act outlined the privileges which the Crown
might extend to inventors of new manufactures, and it is this clause
that expresses the general policy underlying modem patent
protections.
That any declaration before mentioned shall not extend to any
letters patent and grants of privileges for the term of fourteen
years or under, hereafter to be made, of the sole working or mak-
ing of any manner of new manufactures within this realm, to the
true and first inventors of such manufactures, which others at the
time of making such letters patents and grants shall not use, so as
also they be not contrary to the law, nor mischievous to the state,
by raising prices of commodities at home, or hurt of trade, or gen-
erally inconvenient: The said fourteen years to be accounted from
the date of the first letters patents, or grants of such privilege here-
after to be made, but that the same shall be of such force as they
should be, if this Act had never been made, and of none others.3 5
The remedies provided for in the Act, the new jurisdiction given to
the courts enacted by statute, and the limitation of term to fourteen
years constituted major new innovations to long standing existing
practices. However, the consideration for the grant remained for the
time being merely the introduction of a new manufacture. The "true
and first inventor" was construed to mean, as before, not only the
person who discovers a new process, but also a person who brought
into England a process previously unknown or unused in England.36
The question of novelty, therefore, depended not upon prior publica-
tion by another thus making it his, but rather upon whether there
had been any prior user in England. The modem practice of reserv-
ing patents only for heretofore unknown processes and inventions
would need to await further social, industrial, and legal
developments.

III. COPYRIGHT IN ENGLAND BEFORE THE STATUTE OF ANNE

According to Ransom, 37 and other commentators, 38 the emer-

34. See supra note 22.

35. Monopolies Act, 1623, 21 Jac. 1, ch. 3, § 6.
36. Hulme, History ofihe Patent System Under the Prerogativeand Common Law, 16 LAW
Q. REV. 44, 55 (1904).
37. H. RANSOM, THE FIRST COPYRIGHT STATUTE 17 (1956).
38. See 2 W. BLACKSTONE, COMMENTARIES *405-07. "Even after the introduction of
printing into England, a hundred years elapsed, it is said, without any legal recognition of
copyright." F.W. MAITLAND & F.C. MONTAQUE, A SKETCH OF ENGLISH LEGAL HISTORY 153
19831 PATENT AND COPYRIGHT LAW

gence of copyright as a legal theory appears only after the invention

of movable type circa 1476. While there exist some commonalities
between the literary problems experienced by the owners of manu-
script literature and the owners of printed literature, the differences
in ease of reproduction lead to differences in ease of distribution and
alienage. As Ransom states the issue:
So long as each volume is clearly a separate entity, separately cre-
ated by a copyist, it may conceivably be subject to the law of per-
sonal property, without respect to copies made individually in the
same manner. But when copies are produced by machine in great
numbers, almost simultaneously, and, identical or almost identical
texts, a logical problem arises. The corpus, which the law de-
mands as the residence of property right, is extended. Is that right
extended by39the same operation, or is it confined to the original
manuscript?
Blackstone likewise locates the origin of copyright in a property no-
tion.' In his view, it is one of several doctrines grounded on the
right of occupancy recognized in Roman law.4 1 Blackstone cites
Locke's proposition that the theory of occupancy itself is founded on
the personal labor of the occupant, and analogizes to the law of
copyright, that this is the same right which any author may be sup-
posed to have in his own literary compositions.42
In any event, the value of printing and printed works was recog-
nized early in England, even if the value of the literary compositions
was largely relegated to a secondary consideration under early copy-
right practice. As early as 1483, the protectionist statute of Richard
III had expressly exempted printed books from its general exclusion
of printed merchandise. 3 Fifty years later, after printing had been

(1915). "It was only after the introduction of printing that any serious question as to the
copyright in literary works could be expected to arise." E.P. SKONE JAMES, J.F. MUMMERY &
J.E. RAYNER JAMES, COPINGER AND SKONE JAMES ON COPYRIGHT 7 (12th ed. 1980).
39. H. RANSOM, supra note 37, at 21.
40. 2 W. BLACKSTONE, COMMENTARIES *405.
41. Id. See also E. H. POLLACK, JURISPRUDENCE 107-08 (1979). As Blackstone recog-
nizes, however, Roman law theorists had a difficult time locating title between the maker of an
item and the owner of the materials. 2 W. BLACKSTONE, COMMENTARIES *407. For example,
if one man wrote anything on the paper or parchment of another, the writing should then
belong to the owner of the blank materials under Roman law. With respect to other works of
genius, however, as in printing on another man's canvas, the same law gave the canvas to the
painter. Id. See also E.A. BROOM & I.H. HADLEY, COMMENTARIES ON THE LAW OF ENG-
LAND 794 (1875).
42. 2 W. BLACKSTONE, COMMENTARIES *406 (citing 2 J. LOCKE, Two TREATISES OF
CIvIL GOVERNMENT ch. 5 (1690)).
43. 1 Rich. 3, ch. 9, § 12 (1483).
 WHITTIER LAW REVIEW [Vol. 5

established in England, the clause was repealed by the Statute of

1533."' The Statute forbade the sale of imported books, and empow-
ered the Lord Chancellor, Treasurer, and two Chief Justices to de-
cree lower prices for native works.45
The king had established his control over native printing from
its inception. The task was delegated to the Privy Counsil, working
through the Star Chamber, which in turn employed the forerunners
of the Stationers' Company, which also became its agent when it was
first chartered in 1556.46
Under the Stationers' Company charter only members of the
Company could practice the art of printing, and the Company was
vested with the usual disciplinary powers of craft guilds. This not
only expedited infringement prosecutions but monitored the activi-
ties of members of the profession. 47 Further, no book could be pub-
lished without an express license of some high official. 48 This
produced a small, but lucrative, source of collusion for certain gov-
ernment officials, and this fact was explicitly recognized by a decree
of the Star Chamber in 1637.49 An ordinance in 1643 substantially
confirmed the existing arrangements, including entry of every au-
thorized volume in the Stationers' Register "according to ancient
custom."5 0
Milton's well-known essay, Areopagiica,"'written in 1644, is an
indignant response to the prevailing licensing practices and owner-
ship arrangements for literary property, in particular the official pro-
nouncement of the preceding year. 2 Milton's eloquence appears to

44. 25 Hen. 8, ch. 15 (1533).

45. E. JENKS, supra note 27, at 281.
46. Id. at 276.
47. Id.
48. This is the source of the word imprimatur, derived from the Latin word of the same
spelling meaning "to impress or imprint" (imprimere). WEBSTER'S 3D NEW INTERNATIONAL
DICTIONARY 1137 (1976). Roughly translated, therefore, an imprimatur constituted an admo-
nition to "let it be printed" followed by the signature of an official licensor of the king. Id.
49. A. BIRRELL, THE LAW AND HISTORY OF COPYRIGHT IN BOOKS 59-60 (1899). See also
Donaldson v. Beckett, I Eng. Rep. 837, 841 (H.L. 1774) (recognizing Star Chamber decrees
supporting Stationer's Company).
50. A. BIRRELL, supra note 49, at 59-60.
51. J. MILTON, AREOPAGITICA (London 1644).
52. See id. The essence of his appeal to the Parliament is in the passage reading:
If ye be thus resolv'd . . .I know not what should withhold me from presenting ye
with a fit instance wherein to shew both that love of Truth which ye eminently
professe, and that uprightnesse of your judgment which is not wont to be partiall to
your selves; by judging over again that order which ye have ordain'd to regulate Print-
ing: That no Book, Pamphlet, or Paper shall be henceforth printed, unlesse the same
be first approv'd and licenc't by such, or at least one of such as shall be thereto
19831 PATENT AND COPYRIGHT LAW

have had little effect on changing the minds of those committed to

perpetuating the established system. In 1662 the Licensing Act con-
firmed the monopoly of the Stationers' Company, as well as the pro-
hibition against unlicensed printing." In addition, it extended the
right of search to King's Messengers armed with warrants in search
of illegal presses. 54 It must be added that the Act also imposed the
requirement that free copies of all published works were to be sent to
the king's library, Cambridge, and Oxford, to which have been ad-
ded a half-dozen additional university libraries over the course of
time. 5 The Act was initially passed for a two-year term but it was
renewed and revived intermittently until 1695 when it was permitted
56
to lapse.
As we have seen, the development of copyright protection for
literary property prior to the Statute of Anne was motivated primar-
ily by the economic incentives sought by the legal printers monopoly
and by the political goals of the monarchy and its adversaries. Au-
thor's rights were given little consideration during this period, and
the public policy of encouraging creators, analogous to that encour-
aging "inventors" of new processed, appears not to have reached a
corresponding level of development until much later. The Parlia-
mentary decision not to renew the Licensing Act in 1694-95 had both
beneficial and detrimental effects. On the one hand, it destroyed the
Crown's prerogative powers and opened the printing industry to
competitive practices." On the other hand, it overturned the title,
registration, and infringement mechanisms." The legal postion of
copyright was very obscure. Did it really exist? In whom did it in-
ure? The continued necessity of dealing with problems of this nature
led to passage of the first copyright statute in 1709.19

appointed. For that part which preserves justly everymans Copy to himselfe, or pro-
vides for the Poor, I touch not ...
Id. at 14-15. Milton's essay defied the law by appearing without license or registration.
53. E. JENKS, supra note 27, at 282-83.
54. Id.
55. Licensing Act, 1662, 13 & 14 Car. 2, ch. 33, § 7. See L. PATTERSON, COPYRIGHT IN
HISTORICAL PERSPECTIVE 138 n.94 (1968) for discussion of the amendments to this section.
See also H. RANSOM, supra note 37, at 98; B.W. BUOBEE, supra note 13, at 54.
56. 4 W. HOLDSWORTH, supra note 8, at 327, 375 (2d ed. 1937). Many cases decided by
the Privy Council during this period continued the effects of some portions of the Licensing
Act well beyond 1695. See Company of Stationers v. Partridge, 88 Eng. Rep. 647 (K.B. 1711).
57. 6 W. HOLDSWORTH, supra note 8, at 377 (2d ed. 1937).
58. See supra note 55.
59. 6 W. HOLDSWORTH, supra note 8, at 378 (2d ed. 1937).