Literary Property: Copyright's Constitutional History and Its Meaning for Today

by

Randolph J. May * and Seth L. Cooper **

The efforts of Noah Webster - "The Father of Copyright" - and James Madison - "The Father of the Constitution" - are important to understanding the constitutional foundation of copyright, even though these efforts are little known by some. Separately and jointly, these two prominent figures in early American history called attention to the need for copyright protection in our newly independent nation. And, through their efforts, they played a leading role in successfully obtaining protection for copyright in several states, and, ultimately, in the U.S. Constitution.

Recalling this oft-overlooked historical alliance between the Father of Copyright and the Father of the Constitution sheds light on the nature and meaning of copyright in our nation's fundamental law. Significantly, Webster and Madison both advanced a public understanding of copyright as a form of "literary property," grounded in a person's basic right to the fruits of his or her own labor. This understanding and grounding should inform our reading of the U.S. Constitution's copyright provision and should continue to guide copyright policy today.

Unlike James Madison, Noah Webster - a lawyer, statesman, author, and lexicographer - is an oft-forgotten figure today. But he played a pivotal role in fixing copyright into American constitutionalism. During the time of the Articles of Confederation, Webster personally lobbied the Continental Congress as well as several state legislatures for adoption of laws securing authors' exclusive rights to the proceeds attributable to their labors. Webster's efforts were largely successful in the states. In large part, this success owed to Webster's close connections with prominent statesmen of the day, including George Washington and James Madison.

James Madison's contributions to American constitutionalism are so significant and wide-ranging that it is easy to overlook the key role he played respecting copyright's place in our constitutional order. Madison pushed through the Continental Congress a resolution urging all states to adopt uniform laws securing rights in literary property. For his part, Madison also helped pass Virginia's copyright law in 1785. Madison regarded the lack of uniform protection of literary property in the states to be a vice in the regime that prevailed under the Articles of Confederation. He did not want to see this same vice carried forward into the new constitutional order.

With Webster's backing, Madison would eventually propose to the 1787 Constitutional Convention a provision for protecting copyright and patent. That provision is contained in the Article I, Section 8, Clause 8 of the U.S. Constitution - the Intellectual Property (IP) Clause. Both Madison and Webster believed that a uniform copyright system was a necessary component of a more perfect Union, to promote progress in science and the arts, as well as commerce.

Copyright's constitutional history - and the contributions of Webster and Madison, in particular - should serve as an important backdrop to today's public deliberations about copyright policy. In particular, Webster's and Madison's view of copyright as literary property arising out of the fruits of one's labor and deserving uniform protection should redirect policymaking to government's primary purpose under the Constitution - protecting rights of property in all its facets. Recognizing copyright in the fundamental law of the land conveys its importance as a means of promoting progress in science and useful arts, as well as in commerce. And by recognizing an individual's rights to the fruits of his or her labor, copyright not only promotes progress and commerce, but also secures a space for individual entrepreneurship free from government control or taking.   

For policymakers and analysts today, the IP Clause makes copyright a normative feature of the American constitutional order, deserving of respect. Of course, we do not maintain that the terms of Article I, Section 8, Clause 8 definitively settle all boundaries regarding scope of ownership and terms of protection. But we do maintain that copyright's status as a constitutionally protected property right does require that all policy touching on such rights comport with the rule of law.  

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Thus, knowledge of the efforts of Noah Webster - "The Father of Copyright" - and James Madison - "The Father of the Constitution" are important to understanding the constitutional history of copyright and its foundational principles. This history reinforces a basic understanding of copyright as a form of "literary property," grounded in a person's fundamental right to the fruits of his or her own labor. Such an understanding and grounding should inform our reading of the IP Clause and continue to guide copyright policy today.

Indeed, Webster's and Madison's view of copyright as literary property arising out of the fruits of one's labor and deserving uniform protection at the national level should focus and redirect policymaking to government's primary purpose under the Constitution - protecting rights of property in all its facets, whether tangible or intangible. Recognizing copyright in the Constitution, in the fundamental law of the land, conveys its importance in promoting progress in science and useful arts, as well as commerce.

For lawmakers, policymakers and analysts today, the IP Clause makes copyright a normative feature of the American constitutional order, one deserving of understanding and respect. Copyright's status as a constitutionally protected property right requires that all policy touching on such rights comport with the rule of law.

** Seth L. Cooper is a Research Fellow of the Free State Foundation.