The (not so) Ancient History of Intellectual Property Rights

Intellectual property law is one of our newest legal innovations. The systems for protection of patents, trademarks, designs and copyright as we know them today are no older than the 17^th or 18^th century, arising out of the English monopoly laws and quickly evolving to the legal concepts we know today. The main philosophical reasoning for granting rights to intellectual works seems inextricably tied to the enlightenment and thinkers such as John Locke. However, ancient parallels are often recounted in articles and textbooks. Some examples are the Norwegian textbook on Patent law by Are Stenvik (Patentrett, 4. ed. p. 17), the IPKat and The Stanford Encyclopedia of Philosophy. You may have heard of a Greek city who granted patents for great dishes, plagiarism at the library of Alexandria or the “battle of the book” in 6^th century Ireland. But is there any real evidence that legal protection for intellectual property actually existed in ancient times?

Ancient Romans discussing something other than IP law (AI-generated art by Dall-E 3)

Patents for Dishes in Ancient Greece?

Many IP interested people will have heard of an alleged patent law in the city of Sybaris, an ancient Greek city in what is now southern Italy. This information is, however, simply not reliable. The only reference to such a law in ancient manuscripts is in Athaneaus’ Deipnosophistae (the Dinner Philosophers), an exceedingly long and strange dialogue written sometime in the 3^rd century AD. In book XII 20. (p. 835 at the link) a long list of the excesses of the Sybarites is listed. Among these excesses, Athaneaus claims that in Sybaris, any cook that invented a new dish was granted and exclusive right to the dish and all proceeds from the sale of it, for one year. This is often cited as the first instance of a kind of patent law. There are several problems with this account.

To start, the source for Athaneaus’ claim is Phylarchus, a Greek historian writing in the 3^rd century BC, some 400 years before the likely date of Athaneaus’ work. All of Phylarchus’ works have been lost, and so we cannot understand the context of the claim. In any event, Sybaris ceased to exist in 445 BC, about 200 years before even Phylarchus’ time.

An ancient feast on greek pottery

In any event, Phylarchus is not a reliable source. He was criticized by his near contemporaries for being an unreliable narrator who embellished and invented his "Histories”. Polybius, writing a historical work almost 100 years later, remarks that Phylarchus’ “opinions are opposed in many points and their statements contradictory”, and seems to have considered him a sensationalist more interested in drama than factual history. Plutarch, while drawing on Phylarchus in his Lives, also seems to think that Phylarchus is untrustworthy, and says of one account (Life of Themistocles, XXXII) that it is so overly dramatic and staged that “anyone can see [it]is untrue”.

Athaneaus himself is not very accurate when citing his sources either. There are many instances of Athaneaus being more interested in making a point than in accurately reproducing his sources. To take just one, Athaneaus claims that the Sybarite Smindyrides had an entourage of a thousand slaves and other servants, citing Herodotus. But Herodotus gives no such figures.

Atheneaus’ claims on Sybaris are clearly exaggerations intended to present a caricature of the excesses of luxury. Among other things, Atheneaus claims that the Sybarites taught their horses to dance, and that food and wine flowed in rivers to or through their city. The Sybarites  seem to be stock characters in other works of Greek literature as well, to whom any thinkable and unthinkable decadent practices could be attributed to make a point. In modern English, “Sybarite” remains an expression for a decadent person.

Frontpage from a 1657 edition of
The Deipnosophists

The story of the exclusive rights to recipes must be seen in this context. It is one of many unbelievable anecdotes in a caricature of excess, listed by a writer who clearly exaggerates he accounts of his sources. The original source of the claim is from 400 years before, by an unreliable author, which writes about a city state that had then not existed for hundreds of years.

In sum, there is little reason to think that the Sybarites had any sort of proto-intellectual property right related to novel dishes. The story is more suited to show how alien a concept of exclusive right to a recipe was to the ancients, indicating that no concept of the individual’s right to technical contributions existed in their society. Still, it is fascinating that Phylarchus immediately identifies the incentives such a legal rule would give to innovate.

Criminal Sanctions for Plagiarists in Hellenistic Egypt?

What then about copyright? It is well known that both the Greek and the Roman elites produced a large volume of written works that were circulated in the upper strata of society, and that such works were highly valued. Many writers were part of the most elite part of society, including Caesar, Plato, Cicero, Aristotle and Vergil. Despite this, there are no credible records of any legal action to enforce an author’s right to his works.

We do have one example of a story of something resembling this. In his monumental work De Architectura, written in 25-30 BCE, Vitruvius sets out the most comprehensive account of ancient architecture. While you may not have heard of Vitruvius, you have certainly seen Leonardo Da Vinci’s Vitruvian Man, which invokes the name of Vitruvius for an image of the dimensions of the human body as an architectural drawing. Beyond architecture, the prefaces to the chapters of De Archtectura includes a number of anecdotes. In the introduction to Book VII, where Vitruvius emphasizes the importance of the ideas of those who came before us, he recounts a story of what could be the first legal proceedings following plagiarism. 

The Vitruvian man

The story is about the Pharaoh Ptolemy, who wanted to inaugurate the newly built Library of Alexandria with a poetry contest. Seven judges were chosen: Six citizens and the librarian Aristophanes. The six citizen judges wanted to award the poets who had received the biggest applause for their poetry recitals. Aristophanes disagreed and said that the award should be given to a poet who had not received much of a reaction. He declared that only that poet was a real poet, while the others were not the original authors of their submissions. And he could prove it: His knowledge of the library enabled him to point out exactly where the would-be poets had stolen their poems from. The Pharaoh was enraged and sentenced the plagiarists for theft. Aristophanes was awarded with generous gifts and was put in charge of the library, where he eventually invented the comma, colon and period.

There are several reasons to doubt this story as well. First, the Library of Alexandria was not built by Ptolemy, but by his successor, Ptolemy the second. Second, Aristophanes would not be available at the opening of the library, which is believed to have been established between 285-246 BCE. Aristophanes was likely born in Byzantium (modern day Istanbul) around 257 BCE so would be at most 10 years at the opening. He is known to have been appointed as head librarian at age 60, i.e. circa 197 BCE. At that point, two other pharaohs, Ptolemy III and IV, would have come and gone and Ptolemy V would have been king.

Photo of a modern edition of De Architectura - Photo by Mark Pellegrini CC BY-SA 2.5

Aristophanes was a well-known scholar, and the library of Alexandria was already surrounded by myths and legends when Vitruvius wrote his work. While Vitruvius could be forgiven from messing up the number of his Ptolemy, and he may well have heard or read the story somewhere, this should not be taken as proof that anyone was ever tried for plagiarism in ancient Greece. The story is presented as an anecdote to make a point about how one should draw on one’s predecessors but not appropriate their work. The story is more likely to be an apocryphal anecdote along the lines of the Egg of Columbus or the Gordian knot. It is also notable that charging a plagiarist with theft is a novelty deserving of a special mention, rather than a general concept invoked to illustrate Vitruvius’ message.

Actions for Ancient Roman Poets?

On the other hand, our term “plagiarism”, originally meaning something like “to kidnap a slave”, was coined for appropriating another’s work by Roman poet Martial in the first century CE. In Epigrams 1.52, complaining to a patron that another presents Martial’s work as his own, the last line reads “Inpones plagiario pudorem” – “Shame on the plagiarist”). Martial also refers to others (especially someone named Fidentinus) reciting his work as though it was their own, in several of his other epigrams (e.g. 1.20, 1.66, 2.20). In other places, Martial describes reciting his poems without paying him as “theft” (1.53, 12.63). While other writers also complain about plagiarism (perhaps the earliest being Theognis, then much later e.g. Horace Ep. 1.3.15-20, Pliny the younger, Cicero), only Martial goes as far as to characterize it as a criminal act. The others discuss it as a nuisance or as something that brings shame to the plagiarist. Martial, in the end, shies away from any need of the courts to enforce his claim. In 1.53 he states: “No need for an accuser or a judge for my books, your page stands up for itself and says, "You're a thief”.

Portrait of Martial, contemplating his plagiarists

The Roman literary economy was very different from our own, with its reliance on a system of patronage and the unavailability of modern printing. We have no indication of any actual court cases, nor any actio similar to intellectual property claims in Roman law. The choice of metaphor here underlines the lack of legal protection for an author’s work, as no other legal metaphor is apparently available. Martial’s admonitions against his imitators should therefore not be read literally, but rather as literary metaphors for what is merely a socially unacceptable appropriation of other’s work. For an excellent and more in-depth article on this topic, see J. Mira Seo Plagiarism and Poetic Identity in Martial, The American Journal of Philology Vol. 130, No. 4 (Winter, 2009), pp. 567-593, from which I have borrowed the above translations.

Our most solid foundation for ancient roman law, Codex Justinianus, does not say anything about the ownership of ideas, textual or artistic works. The Digesta (a summary of authoritative legal scholarship)(41.1.9.2) cites Gaius and states that the boards for painting, unlike letters on parchment, “yields to the painting” (lat. “Sed non uti litterae chartis membranisve cedunt, ita solent picturae tabulis cedere, sed ex diverso placuit tabulas picturae cedere.”) In other words, the boards could not be reclaimed by the debtor once they were painted without paying the artist for the painting. Parchment remains the property of the owner, even if someone else has written on it. These are questions of private property law; ownership of a thing. Here, the value of a painting (and writing) is implicitly acknowledged, but only as a commodity, not as intellectual property.

Was there a Battle of the Book in the early Middle Ages?

A final story often cited is from the very earliest time of the Middle Ages in Ireland. A conflict about a copy of a book is said to have led to a trial and a subsequent battle. The copier was St. Columba, an important monk working in Ireland and Scotland. St. Columba founded the monastery of Iona in 563 and was central in the conversion of Scotland to Christianity. He also, according to a 7^th century source, met a monster in the river Ness, which starts at the Loch Ness, and banished it to the depths. Before his work in Scotland, however, he worked and studied in Ireland.

It was here that he copied a Psalter belonging to another monk, Finnen of Druim. Columba asked to borrow a book, and copied it in secret. When Finnen found out, he thought it against the law to copy his book without consent, and brought the case to the High King of Erin for adjudication. The King, Diarmaid, decided for Finnen, against Columba’s protestation that “The book of Finnen is none the worse for me copying it”, and, in a sort of early fair use defense, claimed that he only wanted to spread the holy word.  Diarmad’s judgement was that “To every eow her young cow, that is, her calf, and to every book its transcript”. Diarmad thus decided by analogy to private property law, in which it was an established principle that the calf of a cow belonged to the cow’s owner, even if someone else cared for it at the time. While at first this may seem as a dispute over a copy of a work which in itself would undoubtably be in the public domain, as the promulgation of the Holy Texts were a prime concern of all biblical monks. However, H. J. Lawlor, E. C. R. Armstrong and W. M. Lindsay argues in The Cathach of St. Columba, Proceedings of the Royal Irish Academy: Archaeology, Culture, History, Literature Vol. 33 (1916/1917), pp. 241-443, that it is likely that Finnen’s psalter was a copy of the new Latin translation of the bible, St. Jerome’s Vulgate, which would explain St. Columba’s eagerness to make a copy.

A page from St. Columbas Catach

St. Colomba was outraged of this (and also that the king had killed a prince which was under the Saint’s protection), and induced the clans of Connall and Eogan to attack the King of Erin at the battle of Druim Cilab. This battle has been dubbed “The Battle of the Book” in some later accounts.

 While we know that this battle took place, we have little reason to think that the account about the copying of the book is factual. For one, our only source of this story is Manus O’Donnel’s 1532 Betha Colaim Chille, written about 1000 years after the alleged events. A source much closer in time, The Life of Saint Columba by Adamnan, written about a hundred years after St. Columba’s death, mentions the battle but not the book. The account is also typical of medieval saint’s lives, including many improbable details, such as a crane plucking out the eyes of a spying agent of Finnen, the eyes later magically restored, Columba copying the work at night, with holy light emanating from his fingertips, and the angel Michael watching over the battle. With all these improbabilities, there is no reason to believe that O’Donnels late account is right when it comes to the alleged copying of the book.

The Cumdach, a receptacle in which St. Columba's book was later kept.
Photo by Wikimedia user Sailko, CC BY-SA 4.0

The myths debunked

These stories about an ancient origin for intellectual property are often recounted in introductions to textbooks and similar texts. They all fall apart under scrutiny. While there may have been literati who scoffed at plagiarism or alterations to their work, there is no trace of any verifiable legal case on the grounds of anything we can identify with modern intellectual property. The accounts we do have of actions resembling intellectual property rights are all presented as novel events and in the form of legends. Instead of appealing to ancient curiosities as a justification for a universal concept of intellectual property rights, it is time to acknowledge that the concept of IP law is a modern one. Our understanding of IP law is best served by accepting that the first examples of anything resembling legal protection for intellectual work are laws such as the Venetian Patent Statute of 1474, the Papal Priveliges and the Statute of Anne, all from after the beginning of the modern age in the mid 1400s.