The Constitution's Approach to Copyright:
Anti-Monopoly, Pro-Intellectual Property Rights
by
Randolph J. May * and Seth L. Cooper **
[Below is the Introduction and Conclusion to this latest FSF Perspectives in our series of papers on foundational Intellectual Property principles. A PDF version of the complete
Copyright and patent are rooted in an individual's basic right to the fruits of his or her own labor. Intellectual property (IP) protections are extensions of that basic right. Such protections secure to authors and inventors the financial rewards of their creative works and innovations for limited times, thereby promoting the public good.
Despite the property rights grounding of copyright and patent, some academics and policy analysts have sought, in varying degrees, to undermine the legitimacy of IP rights. One line of attack suggests that IP rights are illegitimate government-conferred monopolies. A related claim is that IP rights are essentially contrary to the anti-monopolistic outlook of America's Founders.
These lines of attack on IP rights are wrong. Government-conferred monopolies over commerce, trade, and occupations are, in fact, almost always anathema to the American constitutional order as well as sound public policy. But basic distinctions set individual IP rights apart from illegitimate government-conferred monopolies.
Under a property rights approach to copyright and patent, limited protections are tied to the creation of specific literary works and new inventions. This leaves others like freedom to create and invent, with no geographical or occupational barriers to entry.
Above all else, the U.S. Constitution recognizes the uniqueness of copyright and patent. At the time of the nation's founding, basic differences between government-conferred monopolies and individual IP rights were well known. The Founders were familiar with Britain's sorry history of Crown-chartered monopolies. They were likewise familiar with attempts by English common law courts and by Parliament to restrict such monopolies and to protect IP rights for authors and inventors. Colonial experiences with continuing British monopolistic practices were also a factor in spurring the American Revolution.
While the Founders held an anti-monopolistic outlook, at the same time they supported limited protections for copyright and patent, placing the power to establish those protections in the fundamental law of the land. Article I, Section 8, Clause 8 of the U.S. Constitution grants Congress power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In other words, it is clear that the framers and ratifiers of the Constitution made a conscious choice to protect individual IP rights and, at the same time, to rely on certain constitutional safeguards against monopolies.
In addition to the limits inherent in the IP Clause, the U.S. Constitution's early supporters stressed structural safeguards against monopolies, including the enumerated powers doctrine. Under this doctrine, Congress could only exercise those legislative powers expressly granted to it, and the U.S. Constitution nowhere granted Congress any power to establish monopolies. Another check against monopolistic abuses was supplied by the republican form of self-government upon which the U.S. Constitution was established and which it guaranteed.
Moreover, concerns regarding government-conferred monopolies over literary publications were expressly addressed in the Bill of Rights. The First Amendment's prohibition on laws abridging the freedom of the press banned government licensing of the press. And it also supplied the federal judiciary with a firm basis for vindicating individual rights to write and publish freely.
Thus, the U.S. Constitution rightfully should be considered to be anti-monopoly and pro-IP rights. Both of these conceptions rightfully coexist in our constitutional order, and they should drive public policy to limit government-conferred monopolies and to promote and protect individual IP rights.
. . .
Copyright and patent are rooted in an individual's natural right to the fruits of his or her own labor. Intellectual property protections are inextricable, necessary extensions of that basic right. Such laws secure to authors and inventors the financial rewards of their own creative works and innovations for limited times, promoting the public good.
Despite the property rights grounding of copyright and patent derived from Lockean principles adopted by our Founders and incorporated into the Constitution, some academics and policy analysts have sought to undermine the legitimacy of IP rights by comparing them to illegitimate government-conferred monopolies. Such attacks on IP rights are misguided.
Government-conferred monopolies over commerce, trade, and occupations are anathema to the American constitutionalism. But basic distinctions set copyright and patent protections apart from illegitimate government-conferred monopolies.
Under a property rights approach to copyright and patent, limited protections are tied to the specific literary works and inventions of individuals or individual entities. This leaves others like freedom to create and invent, with no geographical or occupational barriers to entry.
Above all else, the U.S. Constitution recognizes the uniqueness of copyright and patent.
The Founding Fathers held an anti-monopolistic outlook and at the same time supported limited protections for copyright and patent. The Constitution's framers and ratifiers made a conscious choice both to protect individual IP rights and to rely on certain constitutional safeguards against monopolies.
In addition to the limits contained in the IP Clause, the U.S. Constitution's early supporters stressed structural safeguards against monopolies. Congress could only exercise those legislative powers expressly granted to it, and the U.S. Constitution nowhere granted the power to establish monopolies. The republican form of self-government embodied in the U.S. Constitution also checked monopolistic abuses. And the First Amendment's Free Press Clause prohibited government licensing of the press.
All told, the U.S. Constitution established an anti-monopoly, pro-IP rights outlook.
* Randolph J. May is President of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland.
** Seth L. Cooper is a Research Fellow of the Free State Foundation.
A PDF of the complete Perspectives may be accessed here.
