[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 six papers in the IP series are at the bottom of this message. A PDF version of the complete Perspectives
Introduction
On July 4, America celebrates its Declaration of Independence. In its pronouncement of the causes which impelled the United States of America to separate from Great Britain, the Declaration set out the basic ends of American government: to secure the peoples' unalienable rights to life, liberty, and the pursuit of happiness.
As the principal drafter of the Declaration, Thomas Jefferson was an intellectual force for the American Revolution - if not its intellectual leader. The classical liberal principles that Jefferson advanced and articulated formed a critical part of the intellectual backdrop to the U.S. Constitution and Bill of Rights.
But while Jefferson's primary contribution to American constitutionalism was in shaping American philosophical understanding of the nature and purpose of government, his influence on public understanding of intellectual property (IP) is peripheral at best. And yet a "Jeffersonian mythology" has overstated Jefferson's role in shaping the constitutional contours of patent and copyright protection.
To the extent Jefferson expressed anti-IP views in private letters during America's founding period, there is little to no evidence that his sentiments regarding patents or copyrights had any bearing on the Constitution. Jefferson was in Paris during the 1787 Philadelphia Convention and ratification period. He likewise was absent when the Bill of Rights was drafted. Accordingly, his letters appear to have done little or nothing to shape public understanding of the IP Clause.
The Article I, Section 8 IP Clause expressly grants to Congress power to provide patent and copyright protection to inventors and authors, respectively: "The Congress shall have 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." So it is self-evidently the case that the Constitution authorizes IP protection. The fact that the Constitution expressly confers on Congress the power to protect copyrights and patents suggests that the few scattered criticisms of IP were, in principle, rejected in the Constitution's formation.
For that matter, there is good reason to conclude that Jefferson's apparent opposition to IP was less-than-persuasive. It proves too much to read all of Jefferson's concerns about British Crown grants of commercial trade monopolies into his misgivings about IP rights. The Constitution's framers and ratifiers grasped the crucial distinctions between unlimited trade franchise monopolies bestowed by a monarch regime and limited grants of exclusive property rights to inventors and authors under constitutional republicanism. On the one hand, a trade franchise monopoly by design placed market power in the franchise holder - much in the sense in which we understand "monopoly" in the modern era. While on the other hand, a so-called, but ill-denominated, "limited monopoly" granted a patent or copyright holder the exclusive use of a particularly specified creative work for a limited period of time. Indeed, the patented or copyrighted work might have many close, attractive substitutes in the marketplace. And no entry barriers would have prevented inventors or authors from bringing forth such substitutes.
It also deserves consideration that Jefferson's misgivings about monopolies and IP were in some measure owing to his attraction to an Enlightenment-influenced 19-year generational theory about when constitutions and laws should expire. That peculiar theory was never incorporated into the U.S. Constitution or otherwise accepted by the American public. Moreover, the extent of Jefferson's opposition to IP has also been overstated at times. While still in Paris, Jefferson appeared at least partially reconciled to the IP Clause and its property rights protections for patents and copyrights. This coincides with Jefferson's overall reconciliation to the Constitution he had initially opposed.
Importantly, patent and copyright protection fits comfortably within the Constitution's classical liberal framework for limited government and protection of individual rights that Jefferson so eloquently espoused. To the extent inventions or literary works themselves constitute fruits of labor, inventors or authors by nature possess unalienable rights to those fruits. And through laws guaranteeing exclusive rights to the proceeds of those inventions or works for limited periods, society has established alienable property rights for the respective inventors and authors. And in practice, Jefferson, as a public administrator, oversaw the implementation and even the expansion of these IP protections.
Jefferson's ideals for administering the government were thus one in the same with those espoused in the Declaration. Jefferson's First Inaugural Address is the paradigmatic expression of his philosophy for administering the federal government. At the core of that natural rights understanding was a conviction that "a wise and frugal government...shall not take from the mouth of labor the bread it has earned." Inventions and artistic works are the bread that labor has earned and which government should not take. Conferring exclusive property rights in the proceeds of such labor coincides with the rendering of what Jefferson termed "equal and exact justice to all men," rather than granting monopolistic controls over entire commercial enterprises or prohibiting individual industry.
Indeed, at a practical level, IP rights coincided with Jeffersonian administration of government. As President, Jefferson oversaw the modest expansion of IP rights through the appointment of the first Superintendent for the federal government's patent process and by signing the Copyright Act of 1802, conferring copyright protection on maps, charts, engravings, etchings, and prints.
The contributions of Thomas Jefferson to the public philosophy of the Constitution should not be understated. Americans enjoying their unalienable rights to life, liberty, and pursuit of happiness ought to celebrate Jefferson's role in drafting the Declaration of Independence, especially on each July 4. But his apparent misgivings about IP shouldn't be overstated. Nor should Jefferson's private letter views about IP be read into the Constitution over and against the IP Clause's clear recognition of patents and copyrights.
* 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.
