[Below is the Introduction to this latest Free State Foundation Perspectives in our series of papers on foundational Intellectual Property principles. Links to the first five papers in the IP series are at the bottom of this message. A PDF version of the complete Perspectives is here.]
Introduction
The First U.S. Congress is the most important Congress ever convened. Called the "Constitutional Congress" by some historians, the inaugural legislative body that met between 1789 and 1791 passed a series of momentous measures that still shape the contours of American constitutionalism. The accomplishments of the First Congress in implementing the Constitution's many provisions, establishing a working federal government, and defining the relationships among the three branches were praised in its day. In the time since its adjournment, the distinguished membership and record of the First Congress has been acknowledged by figures such as John Marshall and Abraham Lincoln. And this is especially so regarding the insights into the Constitution's meaning that may be derived from the First Congress's actions.
Therefore, the proceedings of the First Congress inform our understanding of the underlying logic and significance of intellectual property (IP) rights in the American constitutional order. The First Congress not only passed organic acts that set up the federal judiciary, organized the executive departments, established a revenue system, defined legislative roles in federal affairs, selected the permanent capital of the nation, provided for federal control over territories as well as the admission of new states, and drafted the Bill of Rights; it also passed the first Copyright Act and first Patent Act.
That the First Congress saw fit to include copyright and patent in its ambitious, historic legislative agenda suggests its members found intellectual property especially important to furthering the new nation's economic, artistic, and technological progress. Passage of the Copyright and Patent Acts also indicates a consensus regarding the legitimacy and efficacy of a pro-IP rights policy - a consensus conspicuously absent when it came to Congressional deliberation on other matters.
The U.S. Constitution's Article I, Section 8 Intellectual Property Clause expressly and unmistakably conferred on Congress the power to protect IP rights: It 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." By promptly enacting legislation to protect copyrights and patents, the First Congress confirmed the constitutional status accorded to IP under the Constitution. The Copyright Act provided authors exclusive rights to copy and receive the proceeds from their works for fourteen years with the right to a fourteen-year renewal, upon registering at a federal district court. And the Patent Act offered fourteen-year terms of protection to inventors upon obtaining approval by a three-member Patent Board. Both Acts were the fruition of deliberate effort over the course of the previous decade to put IP rights on a more secure footing. That effort preceding the adoption of the federal Copyright and Patent Acts already had resulted in the adoption of various state laws protecting copyrights and patents following the Confederation Congress's 1783 resolution calling for the security of literary property.
Importantly, the First Congress's securing of copyrights and patents amidst all its other constitution-implementing business is indicative of IP's consistency with the logic of American constitutionalism. In particular, protection of IP rights fits squarely within the classical liberal framework of government securing individual property rights under the rule of law. And promotion of "the Progress of Science and useful Arts" through the securing of IP rights fits with the federal government's constitutionally-assigned role in fostering an interstate commercial marketplace.
Like many constitutional provisions, the IP Clause is set out in general terms, assigning to Congress the role of adopting legislation adapted to changing circumstances. So it would miss the point to treat legislation adopted by the First Congress as the end-all-be-all. For instance, while the basic structure of the Judiciary Act of 1789 continues to shape the federal judiciary today, Congress has nonetheless expanded and altered the scope and composition of the federal judiciary to address changing caseload needs. Shrinking the functions of today's federal judiciary to 1789 levels would hardly serve current needs regarding the administration of justice.
Likewise, it would make little sense to seek a return to the shorter copyright terms of the Copyright Act of 1790 or the administratively burdensome patent approval process of the Patent Act of 1790. The precedential value of the First Congress's actions derives not so much in the minute details of its legislation, but from its basic approach to implementing the Constitution. That is, the First Congress's record should be respected for the foundation it sets: as a starting point that subsequent legislation should build upon.
Moreover, the role of the first Presidential Administration should not to be overlooked in understanding the origins and constitutional pedigree of copyright and patent protection. George Washington called upon the First Congress to pass legislation securing IP rights. And President Washington, whose practice was conscientiously to consider the constitutionality of all legislative measures set before him, signed into law both the Copyright Act of 1790 and the Patent Act of 1790.
Of all the First Congress's contributions to American constitutionalism, its role with respect to the Bill of Rights deserves special attention. Significant insights into the American constitutional order derive from the fact that the same Congress that proposed the Bill of Rights also passed the original Copyright and Patent Acts. That the same indispensable Congress approved both our cherished charter of individual liberty and pro-IP rights legislation creates a strong inference that, at a principled foundational level, all of those important measures were considered consistent with one another and mutually reinforcing.
In particular, the legislative record of the First Congress creates a powerful inference that its distinguished members believed that the First Amendment and IP protections are, in their conceptual foundations, in harmony. Merely invoking the record of the First Congress may not resolve particular law and policy debates regarding the constitutionality and efficacy of aspects of contemporary copyright statutes and judicial rulings. But the historical example and constitutional logic demonstrated by the First Congress regarding the compatibility of free speech and protection of intellectual property rights overcomes the occasional claims of contemporary critics that free speech and IP are fundamentally at odds.
The record and underlying logic of the First Congress provides critical insights into the coherence and importance of IP within the American constitutional order. For anyone seeking to understand the constitutional foundations of IP, the First Congress should be one of the first sources to be consulted.
* 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 at the Free State Foundation.
