CIPIL Spring Conference 2023: Session 3 - Commonwealth / Common Law Approaches to IP

CIPIL Spring Conference 2023: Intellectual Property Rights as Allied Rights: Bill Cornish and the Making of Today’s Intellectual Property SystemIn 1981, Professor Bill Cornish published the first student textbook on “Intellectual Property”. The book was to prove hugely influential, as academic courses on the subject proliferated around the country. In turn, it spawned a host of imitators, all of whom stuck doggedly with the template Cornish had provided (of treating patents, copyright and trade marks together). However, now in its 9th edition, and curated and updated by Professors David Llewelyn and Tanya Aplin, the text has never been surpassed.One of the most significant aspects of the book was its very categorisation. Entitled “Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights”, the textbook presented the distinct legal regimes as “allied” in important respects. Previously, practitioner texts had treated the fields of copyright, patent, trade marks and designs as deserving of separate treatment (in Copinger; Terrell; Kerly and Russell-Clarke; while, at the international level, the Paris and Berne Conventions had instilled a dichotomy between “industrial property”, on the one hand, and copyright and neighbouring rights on the other. Although it would be inaccurate to attribute the shift in thinking to the Cornish textbook (and certainly there were important precursors, not least establishment of WIPO in 1967), forty years on from the publication of Cornish’s seminal text, “intellectual property” has been cemented as a foundational legal concept. The term is deployed in international treaties (e.g. TRIPs, but as a chapter in the vast majority of free trade agreements), in regional instruments (Article 17 of the EU Charter, the EU’s Enforcement Directive), in national constitutions, in domestic legislation; the term is used to denominate governmental and non-governmental organisations, not least the World Intellectual Property Organisation, and the now numerous “intellectual property offices” around the world (including the UKIPO and EUIPO). In the UK, the notion of “intellectual property” serves to define the field of operation of distinct civil procedure rules, as well as the remedies available to litigators. Moreover, the concept figures in the names, and to define the operational fields of, professorial chairs (Bill was the Herchel Smith Professor of Intellectual Property between 1995 and 2004); institutes (such as CIPIL, which was conceived under Bill’s watch and founded to coincide with Bill’s retirement), journals (such as the E.I.P.R. and I.P.Q.) and scholarly organisations (such as A.T.R.I.P., to which Bill gave strong support during his career, including as president from 1985-7).Of course, the concept of “intellectual property” has not gone uncriticised, and its usefulness unchallenged. Some institutes and journals have, of late, abandoned the term: the Max Planck Institute is now an institute for “innovation and competition law”, and UCL has an “Institute of Brands and Innovation Law.” The UK Intellectual Property Office has recently been located within the new Department for Science, Innovation and Technology. At this conference, we bring together scholars and practitioners, many of whom had a first hand relationship with Bill, to consider critically the origin, history, and utility of the notion of “intellectual property”, and more generally of thinking of trade marks, patents and copyright as “allied rights.” Reflecting Bill’s origins (in Australia), his cosmopolitanism (in particular his connection, as external academic member (from 1989) at the Max Planck Institute in Munich), and internationalism (as well as being President of A.T.R.I.P. from 1985-7 and Vice-President of A.L.A.I. from 1990), as well as the links he forged between university and practice (as a door tenant at 8 New Square), the conference will bring together a range of perspectives on the question of intellectual property as “allied rights.”