Origins of the Modern Patent And Copyright Systems

06/07/21 • 17 min

Once upon a time, the right to copy text wasn’t really necessary. If one had a book, one could copy the contents of the book by hiring scribes to labor away at the process and books were expensive. Then came the printing press. Now, the printer of a work would put a book out and another printer could set their press up to reproduce the same text. More people learned to read and information flowed from the presses at the fastest pace in history.

The printing press spread from Gutenberg’s workshop in the 1440s throughout Germany and then to the rest of Europe and appearing in England when William Caxton built the first press there in 1476. It was a time of great change, causing England to retreat into protectionism, and Henry VIII tried to restrict what could be printed in the 1500s. But Parliament needed to legislate further.

England was first to establish copyright when Parliament passed the Licensing of the Press Act in 1662, which regulated what could be printed. This was more to prevent printing scandalous materials and basically gave a monopoly to The Stationers’ Company to register, print, copy, and publish books. They could enter another printer and destroy their presses. That went on for a few decades until the act was allowed to lapse in 1694 but began the 350 year journey of refining what copyright and censorship means to a modern society.

The next big step came in England when the Statute of Anne was passed in 1710. It was named for the reigning last Queen of the House of Stuart. While previously a publisher could appeal to have a work censored by others because the publisher had created it, this statute took a page out of the patent laws and granted a right of protection against copying a work for 14 years. Reading through the law and further amendments it is clear that lawmakers were thinking far more deeply about the balance between protecting the license holder of a work and how to get more books to more people. They’d clearly become less protectionist and more concerned about a literate society.

There are examples in history of granting exclusive rights to an invention from the Greeks to the Romans to Papal Bulls. These granted land titles, various rights, or a status to people. Edward the Confessor started the process of establishing the Close Rolls in England in the 1050s, where a central copy of all those granted was kept. But they could also be used to grant a monopoly, with the first that’s been found being granted by Edward III to John Kempe of Flanders as a means of helping the cloth industry in England to flourish.

Still, this wasn’t exactly an exclusive right but instead a right to emigrate. And the letters were personal and so letters patent evolved to royal grants, which Queen Elizabeth was providing in the late 1500s. That emerged out of the need for patent laws proven by Venicians in the late 1400s, when they started granting exclusive rights by law to inventions for 10 years. King Henry II of France established a royal patent system in France and over time the French Academy of Sciences was put in charge of patent right review.

English law evolved and perpetual patents granted by monarchs were stifling progress. Monarchs might grant patents to raise money and so allow a specific industry to turn into a monopoly to raise funds for the royal family. James I was forced to revoke the previous patents, but a system was needed. And so the patent system was more formalized and those for inventions got limited to 14 years when the Statue of Monopolies was passed in England in 1624. The evolution over the next few decades is when we started seeing drawings added to patent requests and sometimes even required. We saw forks in industries and so the addition of medical patents, and an explosion in various types of patents requested.

They weren’t just in England. The mid-1600s saw the British Colonies issuing their own patents. Patent law was evolving outside of England as well. The French system was becoming larger with more discoveries. By 1729 there were digests of patents being printed in Paris and we still keep open listings of them so they’re easily proven in court. Given the maturation of the Age of Enlightenment, that clashed with the financial protectionism of patent laws and intellectual property as a concept emerged but borrowed from the patent institutions bringing us right back to the Statute of Anne, which established the modern Copyright system. That and the Statue of Monopolies is where the British Empire established the modern copyright and patent systems respectively, which we use globally today. Apparently they were worth keeping throughout the Age of Revolution, mostly probably because they’d long been removed from the monarchal control and handed to various public institutions.

The American Revolution came and went. The French Revolution came and went. The Latin American wars of independence, revolutio...

The American Revolution came and went. The French Revolution came and went. The Latin American wars of independence, revolutio...

Previous Episode

A History Of Text Messages In A Few More Than 160 Characters

Texts are sent and received using SMS, or Short Message Service. Due to the amount of bandwidth available on second generation networks, they were limited to 160 characters initially. You know the 140 character max from Twitter, we are so glad you chose to join us on this journey where we weave our way from the topmast of the 1800s to the skinny jeans of San Francisco with Twitter.

What we want you to think about through this episode is the fact that this technology has changed our lives. Before texting we had answering machines, we wrote letters, we sent more emails but didn’t have an expectation of immediate response. Maybe someone got back to us the next day, maybe not. But now, we rely on texting to coordinate gatherings, pick up the kids, get a pin on a map, provide technical support, send links, send memes, convey feelings in ways that we didn’t do when writing letters. I mean including an animated gif in a letter meant melty peanut butter. Wait, that’s jif. Sorry.

And few technologies have sprung into our every day use so quickly in the history of technology. It took generations if not 1,500 years for bronze working to migrate out of the Vinča Culture and bring an end to the Stone Age. It took a few generations if not a couple of hundred years for electricity to spread throughout the world. The rise of computing took a few generations to spread from first mechanical then to digital and then to personal computing and now to ubiquitous computing. And we’re still struggling to come to terms with job displacement and the productivity gains that have shifted humanity more rapidly than any other time including the collapse of the Bronze Age.

But the rise of cellular phones and then the digitization of them combined with globalization has put instantaneous communication in the hands of everyday people around the world. We’ve decreased our reliance on paper and transporting paper and moved more rapidly into a digital, even post-PC era. And we’re still struggling to figure out what some of this means. But did it happen as quickly as we identify? Let’s look at how we got here.

Bell Telephone introduced the push button phone in 1963 to replace the rotary dial telephone that had been invented in 1891 and become a standard. And it was only a matter of time before we’d find a way to associate letters to it. Once we could send bits over devices instead of just opening up a voice channel it was only a matter of time before we’d start sending data as well. Some of those early bits we sent were things like typing our social security number or some other identifier for early forms of call routing. Heck the fax machine was invented all the way back in 1843 by a Scottish inventor called Alexander Bain.

So given that we were sending different types of data over permanent and leased lines it was only a matter of time before we started doing so over cell phones.

The first cellular networks were analog in what we now think of as first generation, or 1G. GSM, or Global System for Mobile Communications is a standard that came out of the European Telecommunications Standards Institue and started getting deployed in 1991. That became what we now think of as 2G and paved the way for new types of technologies to get rolled out.

The first text message simply said “Merry Christmas” and was sent on December 3rd, 1992. It was sent to Richard Jarvis at Vodafone by Neil Papworth. As with a lot of technology it was actually thought up eight years earlier by Bernard Ghillabaert and Friedhelm Hillebrand. From there, the use cases moved to simply alerting devices of various statuses, like when there was a voice mail. These days we mostly use push notification services for that.

To support using SMS for that, carriers started building out SMS gateways and by 1993 Nokia was the first cell phone maker to actually support end-users sending text messages. Texting was expensive at first, but adoption slowly increased. We could text in the US by 1995 but cell phone subscribers were sending less than 6 texts a year on average. But as networks grew and costs came down, adoption increased up to a little over one a day by the year 2000.

Another reason adoption was slow was because using multi-tap to send a message sucked. Multi-tap was where we had to use the 10-key pad on a device to type out messages. You know, ABC are on a 2 key so the first type you tap two it’s the number the next time it’s an A, the next a B, the next a C. And the 3 key is D, E, and F. The 4 is G, H, and I and the 5 is J, K, and L. The 6 is M, N, and O and the 7 is P, Q, R, and S. The 8 is T, U, and V and the 9 is W, X, Y, and Z. This layout goes back to old bell phones that had those letters printed under the numbers. That way if we needed to call 1-800-PODCAST we could map which letters went to what.

A small company called Research in Motion introduced an Inter@active Pager in 1996 to do two-wa...

Next Episode

The Laws And Court Cases That Shaped The Software Industry

The largest global power during the rise of intellectual property was England, so the world adopted her philosophies. The US had the same impact on software law.

Most case law that shaped the software industry is based on copyright law. Our first real software laws appeared in the 1970s and now have 50 years of jurisprudence to help guide us. This episode looks at the laws, supreme court cases, and some circuit appeals cases that shaped the software industry.

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In our previous episode we went through a brief review of how the modern intellectual property laws came to be. Patent laws flowed from inventors in Venice in the 1400s, royals gave privileges to own a monopoly to inventors throughout the rest of Europe over the next couple of centuries, transferred to panels and academies during and after the Age of Revolutions, and slowly matured for each industry as technology progressed.

Copyright laws formed similarly, although they were a little behind patent laws due to the fact that they weren’t really necessary until we got the printing press. But when it came to data on a device, we had a case in 1908 we covered in the previous episode that led Congress to enact the 1909 Copyright Act.

Mechanical music boxes evolved into mechanical forms of data storage and computing evolved from mechanical to digital. Following World War II there was an explosion in new technologies, with those in computing funded heavily by US government. Or at least, until we got ourselves tangled up in a very unpopular asymmetrical war in Vietnam. The Mansfield Amendment of 1969, was a small bill in the 1970 Military Authorization Act that ended the US military from funding research that didn’t have a direct relationship to a specific military function. Money could still flow from ARPA into a program like the ARPAnet because we wanted to keep those missiles flying in case of nuclear war. But over time the impact was that a lot of those dollars the military had pumped into computing to help develop the underlying basic sciences behind things like radar and digital computing was about to dry up. This is a turning point: it was time to take the computing industry commercial. And that means lawyers.

And so we got the first laws pertaining to software shortly after the software industry emerged from more and more custom requirements for these mainframes and then minicomputers and the growing collection of computer programmers. The Copyright Act of 1976 was the first major overhaul to the copyright laws since the 1909 Copyright Act. Since then, the US had become a true world power and much as the rest of the world followed the British laws from the Statute of Anne in 1709 as a template for copyright protections, the world looked on as the US developed their laws. Many nations had joined the Berne Convention for international copyright protections, but the publishing industry had exploded. We had magazines, so many newspapers, so many book publishers. And we had this whole weird new thing to deal with: software.

Congress didn’t explicitly protect software in the Copyright Act of 1976. But did add cards and tape as mediums and Congress knew this was an exploding new thing that would work itself out in the courts if they didn’t step in. And of course executives from the new software industry were asking their representatives to get in front of things rather than have the unpredictable courts adjudicate a weird copyright mess in places where technology meets copy protection. So in section 117, Congress appointed the National Commission on New Technological Uses of Copyrighted Works, or CONTU) to provide a report about software and added a placeholder in the act that empaneled them.

CONTU held hearings. They went beyond just software as there was another newish technology changing the world: photocopying. They presented their findings in 1978 and recommended we define a computer program as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. They also recommended that copies be allowed if required to use the program and that those be destroyed when the user no longer has rights to the software. This is important because this is an era where we could write software into memory or start installing compiled code onto a computer and then hand the media used to install it off to someone else.

At the time the hobbyist industry was just about to evolve into the PC industry, but hard disks were years out for most of those machines. It was all about floppies. But up-market there was all kinds of storage and the righting was on the wall about what was about to come. Install software onto a computer, copy and sell the disk, move on. People would of course do that, but not legally.

Companies could still sign away their copyright protections as part of a sales agreement but the right to copy was unde...