Lost Classics of Intellectual Property Law: 1 of 4

Some time ago on this blog, I ranted a bit about how younger IP scholars either have lost the knack of knowing something about the history of the discipline – or never acquired it in the first place.

Off and on over the last year, I assembled lists of key pieces of scholarship and key scholars from an earlier era – from the time before IP became a “hot” topic and before it acquired a somewhat polished theoretical gloss. I came up with three lists, one each for patent, trademark, and copyright law, and over the next week or so they will go up here as Posts 2, 3, and 4 of the “Lost Classics” series. These are pieces that (IMHO) IP scholars should be aware of, even if they haven’t read them. The lists are, necessarily, incomplete and provisional, and they reflect some quirks. I’m interested in the intersection of intangible property law and chattel property law, for example, so Zechariah Chafee shows up (in the Copyright list). I have mostly omitted references to well-known primary sources (the Statute of Anne, the Statute of Monopolies, the writings of Thomas Jefferson, and the speeches of Thomas Macaulay).

I call these “Lost Classics” with a bit of rhetorical flourish, not because any of these works or their authors has truly been lost – many if not most are still cited from time to time – but because scholars working in IP today, especially junior scholars, would do well to familiarize themselves with these people and their work including, in the case of the small number of scholars still writing today, their early work. Many of the arguments offered in current scholarship have antecedents or were offered decades ago. Conditions change; the fact that an argument was offered before does not mean that it is not worth reviving. But the intellectual history of an idea is often important.

I applied some simple criteria in compiling these lists: The work must have been first published in 1985 or earlier. Any cutoff date is arbitrary in a sense. I chose 1985 primarily to avoid contests about whether work by still-active scholars should be included. Careful readers will note the presence of early work of some people who are, today, leaders in the field. They will also note that the 1985 date means that I omit important early work by others. I might have chosen 1987, or 1989, or 1990. But I didn’t.  Twenty-five years is a nice round figure.

I did not compile a complete bibliography of relevant scholarship from this earlier era. I included scholars and scholarship whose work or words, it seemed to me, have stood some test of time – or should – or both. (I don’t mean, however, to include only work whose arguments anticipate modern equivalents.) Perhaps there are works on the lists that don’t belong; no doubt I haven’t included works that do. I did not include recent treatises, or casebooks of any kind. Coverage of work published in professional journals rather than in scholarly journals – the Journal of the Copyright Society, the Journal of the American Intellectual Property Law Association, the Journal of the Patent and Trademark Office Society, the Federal Circuit Bar Journal, and the Trademark Reporter, and their respective predecessors – is spotty, at best. I did not try to cover scholarship published by economists or historians, but some snuck in anyway. And I have not ventured to collect older scholarship first published outside the United States. I don’t know that literature; that’s a gap that I hope someone else can fill.

I was struck by the relatively long list that I compiled for copyright law (no doubt due at least partly to my greater familiarity with the field) and the comparatively short lists for patent and trademark law. Was there really that much more early scholarship on copyright law? I suspect not.

My various errors and omissions will be cured, I hope, in the comments and eventually in updated versions of these lists.

Tomorrow: Copyright
After that: Trademark
Finally: Patent

Happy New Year to all!

The posts in this series:

Lost Classics of Intellectual Property Law – Background and Introduction
Lost Classics of Intellectual Property Law – Copyright
Lost Classics of Intellectual Property Law – Trademark
Lost Classics of Intellectual Property Law – Patent

4 thoughts on “Lost Classics of Intellectual Property Law: 1 of 4

  1. Bravo, Mike! This is a wonderful, and important, task. In a world with so much new information gushing at us, curation of the best information is helpful indeed.

  2. Prof. Madison, I look forward to your lists of recommended reading. My own knowledge of the history of the discipline is inchoate at best.

  3. May I suggest that required reading in the trademark field should be Frank Schechter’’s Rational Basis of Trademark Protection, 40 Harv. L. Rev. 813 (1927). It’s a cornerstone.

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