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32 IDEA 123 (1991-1992)
The Roots of Anglo-American Intellectual Property Law in Roman Law

handle is hein.journals/idea32 and id is 133 raw text is: THE ROOTS OF ANGLO-AMERICAN
The following discussion is undertaken in order to provide the ground
for a comparative analysis of the traditional property institutes with
the intellectual property institutes.' Our opinion is that the existing
differences between the legal systems are often exaggerated, and that
the property institutes in these various legal systems should be sensibly
Master of Intellectual Property, FPLC, 1990. This paper is a part of a more comprehen-
sive ongoing research in the field of intellectual property. The aim of the research,
entitled Integral Protection of Intellectual Property, is to determine the cultural and
historical relation of traditional property law to modern intellectual property law.
The crux of the research is directed towards analogizing between certain traditional
property rights (in Roman, civil, and common law property) with intellectual proper-
ty law. A future article will discuss the role of equity in Roman law and its role in
intellectual property law. The author would like to express his deepest gratitude to
Prof. William 0. Hennessey of Franklin Pierce Law Center for his guidance and sup-
port during work on this project. The author also wishes to acknowledge his gratitude
to Fenwick & West, Palo Alto, California, for their support. © Mladen Vukmir, 1990.
The word institute, as it will be used in this essay denotes an established legal princi-
ple, or a legal concept. It is acommon legal term in civil law doctrine in the same
sense, and it should not be confused with the Institutes in the sense of legal compen-
dia such as those written by Gaius, Justinian, or Coke. Certainly, the meaning of
the titles of these compendia denotes the same concepts. In other words, the role of
the compendia is to clarify existing legal concepts by compiling legal rules in a cer-
tain systematized way, thus enabling the concepts to emerge as institutes. Although
such a meaning is not familiar in the common law, some authors, such as Posner,
The Economics of Justice, (1981), use the term institution in the same manner as we
use institute. See, e.g.,, at page 20: [Blackstone] traced the articulation of the con-
cept in specific rules and institutions of the legal systems of his time. (Italics added.)
Finally, The Random House Dictionary of English Language, (2d Ed., 1987) defines
an institute as: 10. an established principle, law, custom or organization, and
Websters Third New International Dictionary (1986) defines it as: something that
is instituted: as an elementary principle: a precept of rule recognized as authoritative.

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