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Perspectives from FSF Scholars           January 14, 2014        
Vol. 9, No. 4                    

  


 

The "Reason and Nature" of Intellectual Property:
Copyright and Patent in
The Federalist Papers

 

by

 

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

 

[Below is the Introduction to this latest Free State Foundation Perspectives. A PDF version of the complete Perspectives is here.]

 

 

Congress's power to secure copyright and patent is expressly granted in the U.S. Constitution's Article I, Section 8 Intellectual Property Clause. It confers on Congress a power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries." In order to better grasp the meaning of this power and the rights it is designed to secure, attention undoubtedly should be paid to that repository of American constitutionalism widely regarded to be second only to the Constitution: namely, The Federalist Papers.

 

Such attention to The Federalist Papers is not merely a matter of historical interest, although the history is certainly interesting. Rather, it is a matter of enhancing our present day understanding of why our Founders thought copyrights and patents important and deserving of protection in our Constitution.

 

So, just what does The Federalist have to say about copyright and patent?

 

James Madison, writing in the guise of "Publius," provided that work's lone direct reference to Congress's power to protect intellectual property rights. In the Federalist No. 43, Madison wrote:

 

 The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

 

A proper reading of that brief passage requires examination of its context within The Federalist as well as Madison's other writings from that period. Such an examination reveals a rich understanding of the nature of IP and its place in the U.S. Constitutional order. In subtle and succinct fashion, Federalist No. 43 identifies the ultimate source for copyright and patent in an individual's natural right to the fruits of his or her own labor. Madison regarded copyright and patent as forms of property that government is established to protect. Additionally, as Federalist No. 43 and other numbers point out, securing an individual's IP rights, consistent with the rules of justice, also furthers the public good by incentivizing further investments and discoveries that promote the "progress of science and useful arts."  

 

In reading Federalist No. 43's IP passage, one can see it is bookended by considerations about the locus of power for protecting copyright and patent under the proposed Constitution. The opening sentence describes the usefulness to the Union of a congressional power for protecting IP. And the closing sentence recounts both the recognition of IP rights by States as well as the inability of the States separately to provide the necessary safeguards for IP.

 

Given Madison's use of the terms "utility" and "public good," along with the IP Clause's language about promoting progress, modern minds may be prone to read into Federalist No. 43 a utilitarian understanding of copyright and patent. In general, however, the utility that The Federalist was concerned with is the "Utility to the Union" of lodging certain powers in the federal government. And Federalist No. 43's concern with conferring on Congress the power of protecting IP rights is no exception.

 

Furthermore, a constructive definition of the term emerges from The Federalist Papers. Particularly insightful are Federalist essays, such as 10, 37, and 51, that address the finiteness of human perception and communication, the fallibility of human reason, and the degree of depravity in human character. According to The Federalist, those aspects of human nature create a tendency toward the vice of self-interested factions. Constitutional structures such as the separation of powers and the extended sphere of representative government are required to act as counterweights and to channel self-interests in the service of the public good.

 

Throughout these essays, "public good" encompasses the interests of all people in the security and enjoyment of their rights to liberty and property, consistent with impartial rules of justice. Therefore, protecting the respective IP rights of authors and inventors "for a limited time" in order "to promote the progress of science and useful arts" in society, fits firmly within Madison's overall understanding of the purpose of a just government: to protect individual rights of liberty and property, in the furtherance of the common good rather than the self-interests of a faction of the people. 

 

Nestled between Federalist No. 43's bookends addressed to federal and state power is a brief and subtle allusion to the underlying nature of IP rights. Madison's meaning is rather easy to misunderstand or to be confused because of the reference he makes to British common law copyright. But Madison was not making an appeal to binding historical precedent from the Old World. Rather, Madison invoked a historical point of reference in order to address what his co-author Alexander Hamilton, in Federalist No. 78, would call - "the reason and nature of the thing." What Madison ultimately was concerned with was certain British common law jurists' identification of an individual's natural right as the reason for protecting an author's copyright. Madison appealed to that same reason and advanced its application, in an American constitutional context, to support the protection of both copyright and patent rights.

 

Thus, in its essence, Federalist No. 43 traces the reason and nature of intellectual property to an individual's right to the fruits of his or her labor. Madison's short explanation for the IP Clause in Federalist No. 43 grounds copyright and patent in natural right, not merely utilitarian calculations about the greatest good for the greatest number.

 

Of course, a natural rights perspective does not eliminate matters of social utility from consideration in defining the dynamics of copyright and patent. Legal or administrative decisions about how best to secure individual IP rights are often complex and fact-intensive. Sound policy demands that both short-term and long-term costs and benefits to society be taken seriously in making such decisions. In the final analysis, however - and  this is the important point - such decisions are about how best to protect the core of pre-existing rights of property that do not ultimately depend for their existence upon empirical or intuitive economic calculations. Thus, utility may be said to supply a boundary principle for IP rights, but natural right supplies IP's foundational grounding principle.

 

* 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 an Adjunct Senior Fellow of the Free State Foundation.

 

A PDF of the complete Perspectives may be accessed here.
 

   

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