BACKGROUND

William Rodolph Cornish was raised in the backwater that was South Australia, in the shadow of the Second World War. His upbringing was a “quiet, day by day life in the atmosphere of post – war South Australia which was essentially a placid place, with none too grave distinctions of, for instance, class”Footnote ¹ As a youth in Adelaide, Bill was oblivious to this seclusion, but his life changed in 1955: “When I was seventeen I had the chance to come to England for a year and that is when I realized how cut off we were. It is important to give an impression of this because partly through going overseas before university study, I did acquire a very strong will to see European countries for myself and to acquire some understanding of their peacetime resurgence.”Footnote ² This spirit of adventure, and the urge to expand his scholastic horizons, has been one of the defining factors in Bill Cornish's career, as I learnt during the three interviews I conducted with him during March-May 2015 for the Eminent Scholars Archive.Footnote ³

Here I shall focus on two particular characteristics that stand out from our conversations and my readings of his published works: his perception of legal history; and his ability to identify and formulate elusive intellectually-grounded commercial concepts. These were honed during his long association with the London School of Economics and are ultimately traceable to his roots in a State that has “quite an interesting and distinctive history from the rest of …Australia.”Footnote ⁴

Bill Cornish retired in 2004 as the Emeritus Herchel Smith Professor of Intellectual Property in the University of Cambridge. For readers wanting further details of his rich career, this account should be read in conjunction with the biographic summary given in his Archive tribute. I have tried to avoid unnecessary repetition.

Emeritus Professor Cornish was born in Adelaide in August 1937, and in his recollections of early life he described how his parents had struggled through the financial depressions of the 1930s, because his father, although a solicitor, was relatively poorly-paid. This was a result of historical financial and legal developments in the colony of South Australia that had led, in the mid-nineteenth century, to its adoption of the TorrensFootnote ⁵ system for the title of land. This legislation had effectively removed the lucrative business of conveyancing of land from legal practitioners by creating land agents and a public system of registration. Professor Cornish's interest in legal and social history seems to have sprung early from his realisation of the effects this change in legal position ultimately had on his family's fortunes. Solicitors in South Australia were destined to be a relatively impoverished class, and the situation remained so during his father's time, and was extant when Bill undertook his own legal training in 1956–60 at the university in Adelaide. His interest was such that he gave the Archive some fascinating insights into the early social, legal, and religious developments of his home state, which was entirely “a free settlement”, and how this had set it apart from the other Australian colonies, which had been primarily penal settlements.Footnote ⁶

Figure 1

Bill Cornish as a student at Adelaide University 1955–1960.

Both the school that he attended in the late 1940s, and Adelaide University, where he studied law, had been founded by the Anglican Bishop of Adelaide.Footnote ⁷ Both were relatively enlightened establishments, where Bill was fortunate to fall under mentors who encouraged his outward-looking attitudes. Professor Cornish emphasised that his career had hinged on the fact that the headmaster of St Peter's College, with his mother's backing, had encouraged his taking 1955 as a gap-year in Europe. This was a venture undertaken through the good offices of the church and contacts with the Reverend Tubby Clayton,Footnote ⁸ who ran a charitable venture in the UK for war veterans known as Talbot House (=Toc-H).

Resultant visits up and down the UK, and to First World War cemeteries in Flanders, not only opened Bill's eyes to the devastation that had been wrought by war in Britain and France, but also engendered the desire to become part of European society referred to in my opening paragraph. Although Bill returned to Adelaide in 1956 to study for his LLB, he found the academic atmosphere amongst his fellow students restrictive, and, having already been overseas, “I really couldn't wait to get to a better law school more in the centre of change of legal education…”

Thus, by the time he was nineteen, the singular circumstances of life in South Australia had, inter alia, nurtured in Bill Cornish an interest in socially-focussed legal history, and a desire to be part of an outward-looking legal milieu that he knew only study in UK/Europe could provide. Both these traits were to be strengthened and developed by his attendance at Wadham College Oxford, where he did his Bachelor of Civil Law (BCL) (1960–62), and during his long association with the London School of Economics, which began in 1962 and lasted until 1990.

LEGACIES OF THE LSE

Propelled by a British Commonwealth Scholarship, Bill Cornish arrived in Oxford in 1960 to read for a two year Bachelor of Civil Law degree. He enjoyed his time at Oxford enormously. He was “amongst a cohort of highly committed legal scholars, [and] some great teachers,Footnote ⁹” while during the Easter break each year, he attended civil law courses in Strasbourg and Luxembourg given in French. This introduction to European jurisdictions stood him in good stead for his later work in Germany at the Max Planck Institute, and ultimately led him to co-found the British Law Centre at Warsaw University thirty years later.Footnote ¹⁰

It was, however, his nearly three decades at the London School of Economics that provide the key to understanding Bill's innovative approach to legal problems (1962–90). His arrival at the LSE seems to have been facilitated by his tutor at Wadham College Oxford, Peter Carter,Footnote ¹¹ being a personal friend of the Professor of Law at LSE, Sir Otto Kahn-Freund.Footnote ¹² Thus, despite giving a “terrible interview”, during which he made “rather a fool of myself”, Bill was offered the post of assistant lecturer. It was a move “from which I didn't look back….that's where I really got going.”Footnote ¹³ It immediately opened up a series of opportunities, of which he took full advantage.

Firstly there was the establishment of a long-time friendship with Kahn-Freund, whom Professor Cornish described as “an enormously distinguished man.”Footnote ¹⁴ Kahn-Freund had fled from Germany before World War II, and was one of the famous German-Jewish émigrés described in Beatson & Zimmerman's bookFootnote ¹⁵ who uniquely brought their civil law training and successfully merged it with the common law tradition. Sir Otto bequeathed to Bill inter alia two critical notions: a pan-European vision to legal problems; and a sense of the need to address legal problems that were then ahead of their time - “fringe subjects” Bill dubbed them, things without which “these days…we wouldn't dream of sending [students] out…,” “looking to do new things in legal education…..all sorts of radical thoughts, like splitting up what the law of property had always been…….which was the law of land, and associating it with tort, such as the tort of conversion and trespass and so forth…… That was going on very much in my first years there.”Footnote ¹⁶ It was directly through the latter that Bill Cornish was introduced to the elusive concept of balancing protectionism against monopoly in commercial activities that would engage his fertile imagination and eventually establish him as a world leader in the field of intellectual property.

A second, and equally critical, aspect was that at the LSE Bill found a “lot of like-minded people” with whom to interact, and in particular, there was a spirit of “a socially realistic view of how the law operated, as distinct from learning its principles in a relatively abstract way.” Footnote ¹⁷ To illustrate his point, Professor Cornish cited the irreverence with which some of his colleagues approached legal issues: “Certainly interesting things were happening. Two young high flyers who wrote strikingly in ways that the….judiciary did not appreciate, were Tim MurphyFootnote ¹⁸ and Richard RawlingsFootnote ¹⁹…..They wrote an article on the low grade of reasoning by judges in the House of Lords, the senior court of the time. [T]heir analysis was less than flattering. Decisions could all turn on, “that seems reasonable to me” and couldn't go beyond that sometimes, fearing to be classed as political judges who had taken a particular position in real life….. It was a lively place to be …. in the mid-1960s.”Footnote ²⁰ Professor Cornish summed up the LSE atmosphere as “it was looking to do new things in legal education to make it more socially aware.”Footnote ²¹ This air of scholastic questioning encouraged Bill to view legal innovations in their social context, and it formed the bedrock on which he approached his analysis of legal history. It fed directly into his appreciation of the early legal and social history of his home state, and what had set it apart from the other early Australian colonies.

A SOCIAL VIEW OF LEGAL HISTORY

Bill's immediate colleagues at the LSE in the 1960s had become imbued with the spirit of the socially realistic view of how the law operated, and had teamed up with “…a man who became a great friend, Charles Clark,Footnote ²² a legal publisher….. He was at Penguin Books in the second half of the 1960s and there he promoted….a series which he called “Law and Society” in which new types of writing, more socially-conscious, would be available at the level of a general readership but also students therefore and introduced us to such fine works as Harry Street'sFootnote ²³ “Freedom of the Individual and the Law”, Borrie and Diamond's consumer lawFootnote ²⁴ …..The great LSE one was Bill Wedderburn's,Footnote ²⁵ “The Worker and the Law”Footnote ²⁶ which became much chastised by members of the Bar who were somewhat more conservatively constructed.”Footnote ²⁷

Bill Cornish's contribution to this literary movement was a collaboration with his LSE colleague Dr David Thomas.Footnote ²⁸ They began a study of the English jury system “because I was teaching the English legal system, the sort of task that junior lecturers get, and it seemed particularly enticing because, of course, it is a secret system. Judges instruct jurors in our courts without being present during their deliberations and nobody knows much about what happens. I thought I could conduct at least some preliminary enquiries in order to make a start on opening up the jury system to public inspection….. So, I set about various ways of trying to meet people who dealt with juries, judges in their court, counsel, and I was able to get the names of some who had served as jurors in London and arranged to interview them. Very interesting it was.”Footnote ²⁹

Their book was published in 1968,Footnote ³⁰ and during our interviews, Bill was open enough to concede that although he had been “…able to build up something of a working picture although, as some of the critics pointed out, I really had no objective across-the-board knowledge. Thousands of people are serving each year as jurors and how to get a bit closer to a social picture of them was under the rules then and now very difficult. It wasn't actually illegal to interview jurors at that stage, so that was introduced into the law in 1980 when more people got interested in talking to them.”Footnote ³¹

A second, more challenging project in the spirit of the LSE ethos was conceived to address the historic response of the English legislature to developing social issues. The envisaged book was grounded in a commitment to explore the evolution of law-making over a long period of turbulent social development in England during the period 1750–1950, which straddled the transition from a mainly agrarian to an industrial economy with the onset of the Industrial Revolution. At the time, there was no commercial call for such a text, but Bill Cornish saw it as an opportunity to pursue a LSE tradition, and when the book was published in 1989, the following dedication was given to this tradition: “The [Law] Department's motive force has long been that the study of law be grounded in a broader study of society. This book is one expression of that belief……I must record that it was in the special environment of the L.S.E. that the whole project began and remained possible.”Footnote ³² The circumstances of its conception were not without sadness.

In 1969 Bill Cornish who was then, briefly, a Reader at Queen Mary College (1969–70) and his companion Geoffrey de N Clark were travelling by car to Manchester. They were on their way “to the Annual Meeting of the The Society for Public Teachers of Law ….. He was trained first as a historian, but was teaching in the Law Faculty by then of University College London. He had been a solicitor in the interim in a left wing firm of solicitors, very well known. Thompsons in the Temple,Footnote ³³ and he was naturally interested in historians’ approaches to something as wide ranging, but non-specific, as the law surrounding us. We thought there was certainly room for a book which attempted in one volume to give, in particular law students, some grasp of the history of the system they were studying before they went on to such subjects as comparative law or international law or legal philosophy and many of them came to law studies without any real sense of recent British history. Geoffrey and I did not think a legal education should just be about training for a profession. It needed a critical outside perspective on it……[L]awyers….want a solution for their clients’ problems…. [C]ase law… needs to be put in its own surroundings and not simply judged as though all the concepts were the same as they're learnt to abide by today…and that it might well lead them to doubt the certainties of what they are told is a legal principle…. [That was] the general background to the book.”Footnote ³⁴

But all did not go to plan. Shortly after Bill Cornish returned to LSE from Queen Mary College in 1970 as Professor of English Law, “Geoffrey Clark died of cancer within four years of our agreeing the contract for the book with Penguins and that distorted the whole working programme.. He had written bits and pieces. I decided I was probably best able to produce a coherent book with a certain style to it if I did the whole of it by myself, working from Geoffrey's drafts when they were available, but thoroughly redrafting them to fit with what he hadn't done and what I thought was the truly significant historical story to be told on a particular subject.”Footnote ³⁵

By the time Professor Cornish was nearing the end of his mammoth task nearly twenty years later, the original Penguins Law and Society concept was unsuitable. They had “narrowed their focus on new ideas in that 20 years and weren't interested in publishing it. In the end ….the publishers of my other big book on intellectual property, Sweet and Maxwell, undertook to put it out and it came out in 1989”Footnote ³⁶: Law and Society in England 1750–1950. Footnote ³⁷

The book received a mixed reception. Professor Cornish accepted much of the criticism that the book attracted “from the left who thought it was far too …..complimentary to the English legal system”, but he was at pains to point out that it had not been his intention to emphasise the failings of the contemporary English legal system with its “class prejudices, the narrow education of its judges and like matters.” He had preferred to “take a more descriptive attitude - trying to get at evidence....[on] what were becoming hot topics in legal studies, such as the relation of husband and wife, the impact of that sort of family law on children, ……where society was turning in its familial relations….such things certainly deserved a place.”Footnote ³⁸ His was an objective view of the social context in which major legal changes evolved as Britain moved from a rural society to a dominantly suburban, manufacturing, global powerhouse.

Similarly, he was unapologetic over his presentation of the state of the 18^th century criminal justice system, which it had become fashionable to denigrate. The latter attitudes were epitomised by the writings of Douglas HayFootnote ³⁹ with whom Bill Cornish metaphorically clashed swords. Hay had suggested that the system had been driven by a mixture of terror and gratitude, but as Cornish pointed out “One of the things about all these theories of just how unjust the criminal system was, is that there was no established police in our modern sense. That starts only with the Metropolitan Police Act in 1829...[consequently] those who ran localities, some of them kindly, some of them just trying to keep order, some of them with a thorough distaste for the poachers and the poaching classes and all relating to them……naturally …..took different attitudes to their role. It's terribly easy to pick up the cases of bullying and just plain social dislike in all this, but that's what the Hay thesis is built upon.”Footnote ⁴⁰

Professor Cornish chose to follow the “more adaptive view” of John LangbeinFootnote ⁴¹ and collaborators, who built databases “from tracing through caseloads in courts that were functioning quite substantially in all this, not just the Central Criminal Court, ….but cases in the countryside, around London in particular, and [Langbein's analyses has been influenced by] anthropologists who thought you needed to get into the stream of life of the whole community and therefore criminal records were one way of importantly establishing what was going on at grass roots and that produces more modified theories. I chose to side with them”.Footnote ⁴² In other words, Bill Cornish was true to the LSE tradition in taking a holistic societal approach in his interpretations of legal change. It was a philosophy that he employed again when he published his mammoth Oxford University twenty years later.

At the time of its conception, the aims of setting the “history of substantive law and legal practice….beside the surrounding politics ….and economic and social conditions which gave the law its essential significance” were reckoned to be a technique “on which critics were likely to [dis]agree.”Footnote ⁴³ This was compounded by a deliberate policy of making “no attempt to supply a systematic account of political events or of economic and social change”Footnote ⁴⁴ that occurred over the 200 years covered by the book. Professor Cornish's predictions of the book's likely unfashionability were accurate, and “I can't say that, apart from one editor, Sweet and Maxwell were much enamoured with the book. I don't think they sold many copies. They certainly had no plan for a second edition and so there it sat.Footnote ⁴⁵”.

On reflection during our interviews he commented that “There was so much that could have gone into that and didn't….. Although the book sold very few copies in the early years because nobody had courses on the subject and only gradually at the teaching level did it spread. I'd been able to do that at the LSE whilst I was still there, and when I came to Cambridge we tried to do the same thing...”Footnote ⁴⁶

Law and Society in England 1750–1950 was Bill Cornish's swan-song at LSE. It appeared the year before he took up a chair in Cambridge in 1990, and it became the foundation for a later, grander project. He told me that on his arrival at Cambridge “I undertook to Professor Baker that I would put together a team of scholars to contribute to his great series, the Oxford History of the Laws of England,”Footnote ⁴⁷ where his time period was 1820–1914. He realised this would be an enormous task, but based upon the experience of compiling Law and Society, he had already learned some invaluable lessons: “decisions over such things as how much general social history do I put in? How far to pick out the political figures who dominate discussion for a while and then disappear off and do something else? Was it the great names or was it people with obsessions who'd got parliamentary seats or what was it? Some of that has to go in, but you have to be circumspect or you will have ten volumes, not three.” Footnote ⁴⁸

His first priority was to assemble and maintain a team of collaborators, and “of course it was a matter of give and take and one of the factors in that give and take was how much would anybody who became an author lose chances to write lesser stuff….I lost one very good contributor through that, but beyond that it was a matter of personal appreciation of who had emerged as the leading, modern legal historians….it couldn't have been done without my good collaborators, Stuart AndersonFootnote ⁴⁹ from Otago, Michael LobbanFootnote ⁵⁰ from the LSE, Ray CocksFootnote ⁵¹ was at Keele, Patrick Polden,Footnote ⁵² a great expert on so much of the legal system of the English court system, and Keith SmithFootnote ⁵³ on the criminal law in particular but did other bits in the book as well….we held regular meetings and discussed what can be discussed ……I had an oversight….but essentially it was left to each person to write his own chapter.” Footnote ⁵⁴

Bill Cornish had also learned that the way to present such an epic project was to remain true to the LSE ethos that had guided him and Clark in Law and Society. Consequently, one of his criteria in selecting co-authors was to ensure that “these were all people who wanted the history to be expressed and stated, not people who wanted to use it as a tool for political criticism.… we knew we would all think along the same sorts of line because we'd already all written history of this kind in a period really of 20 years.”Footnote ⁵⁵ Following his earlier book, Professor Cornish was fully aware that some legal historians would take exception to this approach, but as previously, he persisted with what he considered a balanced approach, from which readers could form their own opinions - “to not be too obsessed by a position, trying to be straightforward and allowing other people to decide what to make of the material.”

“So, to take an example which I think is provided by one of the least fair of the critics of the first book. One hundred percent trade union law. There had been fine writing with much research behind it by Sidney and Beatrice WebbFootnote ⁵⁶ and those who followed from them like the HammondsFootnote ⁵⁷ which was judgmental at a time when they were trying to make a case for trade unions out of it and the history of movements of trying to do so. The first thing that modern history pointed out about that was the lack of success for so long, and to be told that I was repeatedly disdainful of trade unions as a whole, when I had been trying to write this long, hard history ending up with the Taff Vale caseFootnote ⁵⁸ against the unions striking, and then the liberals of 1906 as Trade Union Act as their triumph and then what followed from that, just has to be dismissed as rubbish.”Footnote ⁵⁹

Nevertheless, some of the criticism along these lines was pointed: “over the whole of this volume [there is] a one-sided, faded and dated view of the world…..for instance the way trade unions are consistently disparaged…. is it fair to compare their struggles for better pay and conditions with the Bar's fight to keep its blatant privileges?.”Footnote ⁶⁰ Anticipating such backward-glancing interpretations of history, Cornish and his fellow authors had already written in their introduction (page lx) that authors “who tackle this period have constantly to remind themselves not to transplant a twenty-first century assumption back into conditions of what was still a very different age, nor must they seize on some interpretation which fosters a case that they are championing for their own time. Indeed, legal language exposes itself as a particular case for the post-modern divination that statements stand to be understood as those who receive them wish to treat them, rather than as those who made them intended.”

I believe we can see in these sentiments the hard lessons already learned from his Law and Society project, a trap into which less-experienced observers too readily fall.

The 3,000 pages that constitute Bill Cornish's and his co-authors’ great project carried Professor Cornish through his period of tenure at Cambridge (1990–2004) and a further six years into his retirement. It finally appeared in 2010, and in retrospect Professor Cornish recalled that it had been “tremendously hard work because of the condensation you have to apply after you've discovered everything you can...”, while recognising its inevitable shortcomings “one can always see corners where one should have gone and didn't because exhaustion had set in or we hadn't thought about it sufficiently. There are fringes around legal history always – such matters as public finance for instance, and the taxation system – in the 19^th century the law that would apply across the Empire and so on; areas where it was difficult to go and we didn't do much, if we did anything at all. But it has been a big project.”Footnote ⁶¹

DEFINING ELUSIVE CONCEPTS

At a function to mark his retirement from the Herchel Smith Chair of Intellectual Property at Cambridge University in 2004, Bill Cornish was presented with a copy of a festschrift volume to honour his contributions to the study of intellectual property rights in English Law. In the Preface, his successor in the Herchel Smith Chair, Professor Lionel Bently,Footnote ⁶² wrote that Bill Cornish was “widely and rightly, regarded as the father of intellectual property teaching and scholarship in the UK,…[and that] his careful and subtle thought, informed by an acute awareness of history….impressed all who encountered it.”Footnote ⁶³ This eulogy picks out two features that marked Bill Cornish's success - his ability to pin-down elusive notions and his understanding of the long historical pedigrees of the subject matter.Footnote ⁶⁴ The latter went hand in hand with his parallel love of understanding legal history, to which, as we have seen, he devoted an equal amount of scholarship.

In his definition of “intellectual property”, Professor Cornish says that it “protects applications of ideas and information that are of commercial value,”Footnote ⁶⁵ and he characterises the three main type of intellectual property as patents (rights in technological inventions and design); copyright (rights in literary, artistic and musical creations); and trade marks (rights against imitations in trade). He summed up the kernel of modern IP law as giving “those who have generated or adopted particular pieces of information the right to stop others, particularly their competitors in trade, from adopting that information as though it were their own, but even if they acknowledged that they were copying it from somewhere else.”Footnote ⁶⁶

All these ideas have long historical antecedents, and the first statute that wrestled with the protective, monopolistic notion embodied therein was the Statute of Monopolies of James I (1624).Footnote ⁶⁷ A collateral problem raised by these protections was how to “impose limitations to the system in the name of higher public interest”. Cornish noted that “finding criteria or language that could more precisely curb excesses in the system remains as perplexing today [as it did then].”Footnote ⁶⁸ The difficulty of defining the elusive rights to be protected, yet avoiding overprotectiveness, is a thorny issue to which Bill Cornish bent his “subtle thought[s]” for four decades: as he put it, “the ultimate art in shaping IP policy lies in securing outcomes that are proportionate to the aim of that protection.”Footnote ⁶⁹ And herein lies a further problem with which also Bill wrestled, and for which his outward, Europe-wide vision was well-suited, viz, differences in national attitudes to IPFootnote ⁷⁰ rights which now run deeply into EU legislation.

Figure 2

Conference on Copyright, Royal Tropical Institute, Amsterdam 1995.

When Bill Cornish arrived at LSE in 1962, he had no particular inclination towards this topic, but falling under the wing of Professor Otto Kahn-Freund soon changed matters. “Germany has a long tradition of the establishment of patent rights for inventions, copyrighting, literary and artistic works, the protection of trademarks, which are all aspects of what we now call intellectual property. They tended to have in their capital city universities which taught this subject because that's where the practitioners of it also worked, and these professors were often practising lawyers who just delivered lectures. That was typical round so much of the globe, South America, much of the continent, before the Second World War. So there was the United Kingdom really lacking this whole tradition. It wasn't thought of as anything other than a subject with strong practical implications….”Footnote ⁷¹

Professor Kahn-Freund at the LSE saw it as one of the “fringe subjects” to which he was attracted, and as a consequence “ he invited from the Bar the one man there who wrote independently and critically about the evolution of intellectual property rights, particularly in his book which was entitled, “Patents for Inventions and Registered Designs”….Mr Blanco WhiteFootnote ⁷² …..to give some extracurricular lectures on intellectual property....but nobody came.”Footnote ⁷³

Kahn-Freund approached Bill Cornish, then an assistant lecturer, to take up the baton and offer Intellectual Property as an LLM subject. Bill agreed, seeing the great potential, and also took up a pupillage at the Bar with Mr Blanco White. He teamed up with two other young lecturers. “One of my co-helpers was the now Sir Robin Jacob,Footnote ⁷⁴ who had first taken a natural science degree at Trinity College, Cambridge, but then came to London and took the evening course in law, undergraduate law, that was available at the LSE …..we got on well and he quickly acquired his intellectual property skills at the Bar….together we, and a very clever patent agent called Richard Lloyd,Footnote ⁷⁵ put on this first course. We maintained it together for four or five years before they were drawn to full time practice.” “That's how the course got going and it [ran] through exciting times, when changes were actually happening to intellectual property law; just the beginnings of the great flood we've had since, and we got going to a flying start.”Footnote ⁷⁶

Bill Cornish's “flying start” turned into a great success. “Very few universities then had an established LLM programme. Much of the demand [came] from increasing numbers of foreigners coming into Britain and wanting to do it and I maintained [the course at LSE] until I left to come to Cambridge in 1990 …..and good fun it was.”Footnote ⁷⁷

One deficiency that Bill encountered early on, was that in the 1960s there was no suitable text book on intellectual property. As a consequence, he proceeded to write one: Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights,Footnote ⁷⁸ which first appeared in 1981, and which he meticulously maintained. It is now in its ninth edition and co-authored with David LlewelynFootnote ⁷⁹ and Tanya Aplin.Footnote ⁸⁰ When it appeared “it was more sweeping in its scope than anything that there was on the bookshelves at that stage...[only] very large tomes on the different subjects; patents, registered designs, copyright, trademarks etc, all written for the specialist practitioners in this little known field. The aim [of my book] was to provide teaching material in law schools and there is no doubt that… [al]though the publishers didn't think they'd sell a copy, [it] did catch on reasonably quickly. Within ten years there were many courses in British universities in this field and that was very gratifying…..there's now a huge literature of that type from which you can teach.”Footnote ⁸¹

In recognition of “this first textbook mainly for students on the law of intellectual property in this country,”Footnote ⁸² Professor Cornish was admitted as a Fellow of the British Academy in 1984, and his place as “the father of intellectual property teaching and scholarship in the UK” was assured.

One of the keys to Professor Cornish's success was his realisation that the internationalisation of IP law meant that his teaching had to tap into its comparative aspects, and that the premier venue where such work was undertaken was “Munich, having become the big IP centre after the Second World War. It used to be Berlin but they moved the German Patent Office to Munich after the war and several very significant figures were associated with it directly as well as being founders of a Max Planck Institute for Intellectual Property.Footnote ⁸³ That was the great step that they took; they treated it very professionally compared with any other European country or even the United States as far as thinking that the law was very substantial, quite difficult and needed people who worked on its basis. The Max Planck Institute was notable for …. establishing them on a comparative law and international law basis rather than just the law of the particular country. They had specialist researchers in different geographical areas; they were even getting into China in those days and that was remarkable.”Footnote ⁸⁴ Bill Cornish made his first visit to Munich in 1978, and at the ripe age of forty-two began to learn German. The esteem in which he became held at the Institute resulted in 1989 in his being elected a foreign External Academic Member - a rare honour.

Figure 3

Music at Bill and Lovedy's home in Cambridge. Playing Piano Quartet by Ernest Chausson, Tony Wier (violin), Juliet Beament (viola) Katie Hewgill (cello) Bill Cornish (piano). 1995.

The complexities, and complications, caused by national attitudes to IP legislation can be illustrated by the difficulties of reaching a consensus just within academia in the UK. As commercial opportunities at UK universities increased, with the advancing digital opportunities for IP exploitation, the need for a co-ordinated approach to the different attitudes being expressed became acute. By now, Bill was a recognised international authority on the subject, and he was approached to chair what became known as NAPAG.Footnote ⁸⁵ During our interviews, Professor Cornish outlined the problems, and how his working group came up with solutions to an increasingly complex legal issue.

“[NAPAG was] an affiliation of the leading academies - the Royal Society, the British Academy, the Academy of the Engineers and the Academy for Medicine, all of which had ….. interests in intellectual property …..Universities were beginning to set up technology transfer offices and since the government wasn't then absolutely determined to run everything in educational management they could get their hands on, ….it was left to different universities to make their own policies. Some became very aggressive. Imperial College London needs to be named because they really did try to insist on ownership for their institution being the prime way in which exploitation of new technologies would take place. [But] where particular scientific projects had been put into universities by industry, for instance, industry was not prepared to be bullied in this fashion when their contribution was very considerable. It would be recognised in various ways in the contracts that they pursued, but Imperial College were badly hit by this one-way, “We'll tell you what to do” approach.

“Many institutions [had] a policy in which the university got a share in revenues that were coming in, and at the same time probably got the ability to control who you would choose as outside partners for exploitation and so forth. Oxford went quite a long way down that road. [T]he NAPAG report was about the various ways of doing these things…..I think it was quite widely read and has had quite a sustained influence. [It] led on to …how [universities deal] with these problems, [and] to turn ideas into exploitable technologies….” Footnote ⁸⁶

He went on to explain how Cambridge University, for example, tried to deal with the issue, a process that took nearly another decade: “In Cambridge we had a big row about it, not least because computer scientists in the university wished to keep the returns on their inventive ideas mainly for themselves, a portion for their research students, but absolutely nothing, either in terms of revenue or control over where the exploitation would take place, being left to the university to decide except by contract with the inventors. Needless to say the university thought there might be some other distribution both of power and of money…..we established a pragmatic system in which patents from inventions had to be distinguished from copyright rights, where there's much less basic reason for saying it'll all belong to the university. We hammered out our own relatively liberal pro-academic version of what should happen and that became a policy, if I remember rightly, in 2002 or ’03….. [This] has been successfully operated now by Cambridge Enterprise under leadership that could understand the interests of both sides, but didn't go quite as far as some of the computer scientists would like in their own favour.”Footnote ⁸⁷

The complexity of the issues is highlighted by details of how such schemes will work, and the seemingly impossible task of imposing a standard scheme across the EU, let alone in a global sense. Professor Cornish summarised the Cambridge “liberal” scheme, which he helped engineer as “the actual inventor, the actual author should be the person who first gets the rights and they can then deal with them including handing them over to the technology transfer office of the university.” He then emphasised that within the UK “that's not a view that has been adopted by most vice-chancellors - their first aim was to get all the rights for the university on the basis that that's probably what the government would like them to do, and there's every variety of that around institutions in this country.” In contrast, “the Germans...[have] produced model policies which are much more centrist…it's taken them quite a long time to get [to this position] because German professors individually are powerful people still.” His conclusion was that a resolution to this complex issue “won't be high on the EU's agenda. I can see it's just a minefield of problems.”Footnote ⁸⁸ Nevertheless, “the European Union….has got more and more involved in this field…..[and has started to think] about how it should draw lines to make even the possessors of intellectual property behave more sensibly.”Footnote ⁸⁹

Globalisation of world trade has accentuated the problems. Professor Cornish put things in perspective by explaining that.. “it's a system…which is enormously complicated …[because] all these rights were regarded as part of the economic policy government of states….Private law systems in individual countries are what it's made of …..and the Americans have, of course, been one of the great promoters of this, but their law tends to be country specific, for all sorts of historical reasons.”Footnote ⁹⁰ He recounted that in the early 1990s, with the setting up of the WTO, the Agreement on Trade-Related Intellectual Property (TRIPS) required a standard for intellectual property laws to be established. But progress has been slow because all signatories have to agree to changes and some “people are now beginning to doubt whether TRIPS is the way forward, and the Americans don't waste time on this sort of thing. They're constantly entering bilateral or small range international agreements …..and are much more concerned to get ….these smaller agreements into position and functioning…..All this is big business, I can tell you!”Footnote ⁹¹

Other cultural factors also affect the picture, and one of these runs along juristic lines. Professor Cornish pointed out that currently there is a “great American push to ensure that everything you could conceive of as intellectual property should be protected within the patent system, the copyright system, the trademark system, [while] Europe is much choosier about this. For instance, the [European] copyright system first of all protects the works of authors, painters, composers, classical forms of art and expression. Laxer countries, which typically are from the common law tradition, are not so bothered by that. They don't, for instance, call for an intellectual contribution by the author for there to be copyright….. So, there is this great division between the common law and the civil law attitudes to copyright and it reflects from the latter perspective a deep trust and belief in artistic creation as a high human endeavour and something we must protect from Predia people who are likely to turn only to protection for pop tunes.”Footnote ⁹²

This, at the time of the interviews, placed the UK in an awkward position, being, then (2015) both in the EU and yet having a common law tradition. Professor Cornish gave the example of authors. Some lawyers argued there “shouldn't any longer be [legal protection] for authors…..because in real life ….[they] assign their rights to management societies and so forth to get the revenue in, and that the author should be dropped out of the picture. That will be fought to the death by Germany and France, leading most continental countries in the same tradition.”Footnote ⁹³

In a subject, now with so many specialist niches that, as Professor Cornish put it, “you have… to be reasonably adept at spotting which rights relate to a particular case,”Footnote ⁹⁴ I asked him where he foresaw the trajectory of future trends. The “father of intellectual property teaching and scholarship in the UK” identified two, and I leave readers with his predictions: regulation in the interest of copyright owners; and a possible “rebellion” against over-elaborate, over-difficult patents in the field of biotechnology.

In the former category, Bill foresaw problems for the copyright holder who, with the digitisation of his material, and the lack of an intermediate seller with suitable hardware, cannot influence the end-user. On the issue of patents in biotechnology “it is proving terribly difficult to draw a line between abstract information about what [is] achieved in the scientific sense” and what the consequences are of practical manipulations of biological matter and to what use the products can be put. “With all the associated moral problems, some people think [we] should keep the patent system out of the whole area of human biology…” Luckily, Professor Cornish said that “there's not much money yet in microbiological exploitation,”Footnote ⁹⁵ so he saw this as giving some breathing space during which to strike an intermediate position.

He ended this forward glance to IP's possible future with the observation “Exciting times - not altogether optimistic, whatever some Americans may tell you is the essence of capitalism for the future.”Footnote ⁹⁶

Figure 4

Taking of Silk with Mrs Lovedy Cornish and daughter, Anna. 1998.

Bill Cornish retired from the Herchel Smith Chair in 2004. He continued to live in Cambridge, and was (in 2015) a frequent presence in the Faculty, where he updated and edited his volumes that remained in print. I was fortunate to have been able to interview and to become acquainted with such an erudite and congenial scholar: a true visionary. Finally I am most grateful to Mrs Lovedy Cornish for her support and encouragement during this project.