By Neil J. Wilkof, B.A., M.A., J.D., PhD.

Our understanding of intellectual property derives from its modern legal framework, the development of which we play a continuous part even as we seek to make sense of it. A concern for history in connection with intellectual property usually is focused on how we have arrived at the present legal moment, typically by identifying key judicial precedents and statutory enactments. On the whole, however, our gaze is directed towards the future, not the past.  

But people formed, exploited and protected their intellectual creations before the advent of the modern legal system, and there is many a story to be told via historical narrative in connection with these actions. Historical narrative as enlightened storytelling has a pedigree that goes back to Herodotus in the 5^th century BC.  We engage in such writing because there is a fundamental humanistic value in describing where we have come from, irrespective of whether it provides a throughline or blueprint. Historical narrative offers a unique form of intellectual enjoyment, as does reading a satisfying novel.

The foregoing provided the foundation for ‘IP before IP: Exercising and Protecting Creations and Inventions before the Modern IP Regime.‘ In three Parts– Names, Writings, and Things–we provide historical exemplars, recounting the stories of individuals and their intellectual creations, each acting within a specific political, cultural, religious, and intellectual milieu. We reach back to the Biblical era through to the Industrial Revolution, from Edinburgh to Baghdad, from Saint Jerome to Robert Burns, presenting historical narratives about the exercise and protection of creations and inventions. We are not engaged in legal archaeology, seeking to uncover historical antecedents to our modern intellectual property system. Rather, our focus is on how people addressed intellectual creations and inventions on their own terms and within their own contexts, scattered across jurisdictions and local in orientation.

There are three notable features in offering a historical perspective by providing narratives spanning diverse times and places. First, each chapter addresses self-contained historical period(s). The aim is not to find overarching connective threads, but to take the reader on an adventure of discovery regarding the diversity of creation and invention, focusing on the actions of individuals, one narrative at a time.  Persons and their engagement in creation and inventions, rather than the institutional frameworks, if any, in which such engagement took place, legal or otherwise, are central. No less central is setting out the broader cultural and intellectual background in which each of these acts takes place. Only by providing such background can one properly appreciate the actions of such individuals.

Second, there was no framework of legal harmonization in the pre-modern treatment of creation and invention.  We tend to take harmonization for granted because we are steeped in a world of international intellectual property treaties and agreements, and in their resulting domestic legal frameworks.  In communicating about intellectual property, persons in Rio de Janeiro, Cape Town, Toronto, Helsinki, Chennai, and Hangzhou are all speaking the same conceptual language. On the contrary, absent forces pushing towards harmonization, the pre-modern period witnessed diversity based on person, location, period, and circumstance. Focusing on the stories of various people in a time both without legal harmonization and supporting structures and institutions highlight these dynamics, in stark variance with the current moment.

Third, motivations for creating and inventing in pre-modern times from those that characterize the present.  Underlying our modern system is an interest in encouraging creation and invention for the economic benefit of the creator or inventor, as well as a benefit for the public, which can then take advantage of the fruits of these activities. Key for this economic benefit is that protected creations and inventions can easily be reproduced, enabling the rise of far-flung markets for these outputs.  Contrast this with the pre-modern period, where the ability to reproduce and duplicate was limited, except by hand, if at all.  Even when the technology of reproduction became possible, scaling up such reproduction and copying took root slowly. Further, notions of personhood and authorship, which are also an integral part of the modern intellectual property system, did not play a significant part in pre-modern creation and invention.

‘Neil Wilkof has created an exceptional treatise dealing with the historical development of protection for original creations, explaining in fascinating detail how creative and inventive works were treated before the advent of statutory protection, with richly detailed comprehensive accounts describing political, cultural, and religious issues facing pre-modern creators.’ 

– Daniel Bereskin, C.M., K.C, Smart & Biggar LP, Canada

As well is the need to recognize the role that religion played in pre-modern creation and invention, reflecting its centrality in pre-modern times.  It would be an unusual discussion that seeks to focus on modern intellectual property through the lens of religion. To the contrary, there is nary a chapter in our book that does not address religion in some manner.  Rare was the pre-modern creator or inventor who, like the Biblical Bezalel in designing and building the ancient Holy Tabernacle while the Israelites were wandering in the desert, had the benefit of the Divine Spirit (Exodus 31:1-5).  But nearly as rare was the pre-modern creator or inventor who was unaffected by some aspect of religion.

The reader is invited to join ‘IP before IP’ in this historical journey of discovery.

IP before IP: Exercising and Protecting Creations and Inventions before the Modern IP Regime, by Neil J. Wilkof will be published by Edward Elgar Publishing in August 2026.

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