During the eighteenth and early part of the nineteenth centuries there was widespread agreement that manual labour could and should be separated from mental labour. It would be inaccurate to infer from this, however, that intellectual property law had achieved the status of a separate and distinct category of law: while many familiar themes and concepts were then in use, modern intellectual property law did not emerge as a discrete and widely recognised category of law until midway through the nineteenth century. Although frequent use was made before then of terms such as copy-right, patents, designs and even occasionally intellectual property, it is incorrect to assume that these expressions were used in a consistent, meaningful way or that they referred to distinct areas of law. Similarly, while prior to the 1850s or thereabouts occasional use was made of concepts, modes of organisation and ways of thinking that are recognisably modern in their nature, these were placed alongside and given more or less equal weight to that which now appears to be distinctly alien and pre-modern.

It is often assumed that intellectual property law is a timeless, almost ahistorical, area of law that has always existed, but if we look at the way the law was understood at the time, we see that one of the notable features of the period was that up until the middle part of the nineteenth century there was no Law of Copyright, Patents, Designs or Trademarks, and certainly no Intellectual Property Law (at least as it is perceived today). The fluid and open nature of the law in this area that prevailed during the eighteenth and nineteenth centuries manifested itself in a number of ways. One way in which the fluidity was exemplified was in the fact that there was a lack of consensus as to how the law in the area should be organised. More specifically, although there was general agreement as to the existence of a general category of law which granted property rights in mental labour and which was united by a shared image of creativity, beyond this no one model or image had yet come to dominate as the accurate representation of the law.