FSF Logo Banner
Perspectives from FSF Scholars           September 26, 2014        
                            

  



Intellectual Property Rights Under the Constitution's Rule of Law

 

by

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

[Below is the Introduction to this latest Free State Foundation Perspectives in our series of papers on foundational Intellectual Property principles. Links to each of the first seven papers in the IP series are at the bottom of this message. A PDF version of the complete Perspectives is here.]

 

Introduction

 

Today, the rule of law is all but universally recognized as a fundamental attribute of a free and just society. A "government of laws, not of men" places important limits on government power in order to ensure the protection of individual rights. And a proper understanding of fundamental rule of law precepts plays an important role in securing Intellectual Property (IP) rights.

 

American constitutionalism supplies the basic conditions for America's unique conception of the rule of law - designed to ensure the protection of life, liberty, and property. Intellectual property is a form of property expressly provided for under the Constitution. In theory and in practice, intellectual property is readily conformable to the key components of the rule of law and American constitutionalism, such as according due process and equal protection and protecting vested rights. When IP's critics argue otherwise, including some who otherwise consider themselves respectful of private property rights, they disregard or misunderstand fundamental elements of American constitutionalism and the rule of law.

 

Typically, the rule of law is characterized in terms of its basic precepts. That is, the rule of law is: (1) a system of binding rules; (2) of sufficient clarity, predictability, and equal applicability; (3) adopted by a valid governing authority; and (4) applied by an independent authority.

 

The building blocks to the rule of law in the American constitutional order were in significant part provided by political philosophers of classical liberalism such as John Locke and Baron de Montesquieu. Prominent jurists of the British common law tradition, including Lord Coke and William Blackstone, similarly informed early American thinking.

 

America's distinctive contributions to the concept of the rule of law emerged amidst the American Revolution. These contributions found practical application in early state constitutions, such as the Massachusetts Constitution of 1780. Late 18th Century American political writers, including the authors of the Federalist Papers also explored rule of law implications flowing from a constitutional republican form of government. And many of those early American insights supplied a critical part of the U.S. Constitution's political backdrop.

American constitutionalism thereby supplies the basic conditions for America's unique conception of rule of law. Stated succinctly, key components of American constitutionalism include: (1) a written constitution that constitutes the fundamental law of the land; (2) representative government established by democratic elections; (3) division of government authority through the separation of powers and federalism; (4) an enumeration of protected individual rights; and (5) judicial review by an independent judiciary. These key components provide the institutional context for the application of the rule of law.

 

These key components of American constitutionalism are also applied in light of the classical liberal conception of the basic purpose of government: protecting individual rights of person and property according to equal justice under law.

 

Copyrights and patents are expressly included in the U.S. Constitution, the supreme law of the land. As the Article I, Section 8 IP Clause states, Congress has the 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." Copyrights and patents are therefore unique types of property that the Constitution designates for protection.

 

Under the Constitution, IP rights are secured and subject to revision by democratically elected representatives. The Constitution designates Congress as the valid authority for adopting legislation to secure IP rights to authors and inventors. Therefore, it is the constitutional duty of Congress to define the scope of protected IP rights according to generally applicable laws.

 

Whether laws passed by Congress adhere to the rule of law depend on the particular details of such legislation. But at a general level, the IP Clause embodies at least two important limiting principles. First, the IP Clause secures rights to particular writings or discoveries of individual authors and inventors, respectively. It confers no general trade franchise monopolies to entire sectors or segments of trade or commerce. Rather, other authors or inventors are at liberty to employ their own efforts to create and secure IP rights in their own respective writings or inventions. Second, the IP Clause secures rights to particular writings or discoveries only "for a limited time." Setting copyright and patent protection terms of years provides important certainty and predictability to IP rights-holders, IP licensees, and others.

 

American constitutionalism's framework for enforcement of IP rights against infringement before an impartial court of law is also structurally consonant with rule of law precepts. Aggrieved IP rights holders or executive branch law enforcement authorized to enforce IP rights against infringements are required to prove their cases with evidence before impartial tribunals applying statutes, judicial precedents, or terms of enforceable contracts. And congressional statutes and trial court decisions regarding IP rights are subject to review by independent federal circuit courts of appeal and the U.S. Supreme Court.

 

There are some especially important rule of law implications resulting from IP's status as a constitutionally-protected property right. For instance, "due process of law" requirements attach to IP rights. These requirements include protections from legislative deprivations of property interests in copyrights and patents and the guarantee of regular procedures governing individualized proceedings before independent tribunals.

 

The "equal protection of the law" is a rule of law precept that also has important implications for securing IP rights. Equal protections include the requirement that all property interests in copyright and patents should be treated alike except for those IP rights holders who are differently situated according to a valid public purpose. A related implication is that IP rights should not be subject to discriminatory treatment compared to tangible forms of property rights. Arbitrary classifications are prohibited and reasoned explanations are required to justify differential treatment.

 

The most basic rule of law implication of the Takings Clause's limits regarding IP rights includes a substantive guarantee that IP rights' holders be justly compensated for lost profits resulting from government takings of copyrights or patents. An additional implication of the Takings Clause for IP protection is the right to challenge the genuineness of any claimed "public use" before an independent court of law. And finally, vested rights protections recognized for all other property rights should apply where courts of law render judgments regarding those IP rights. For most purposes, IP rights vest through operation of copyright and patent statutes.

 

Whether or the extent to which contemporary legal doctrines or procedures meet the rigors of the rule of law depends on particularized analysis. What is important is that American constitutionalism supplies a basis for critiquing IP law and policy and for keeping them in conformance with the rule of law.

 

Therefore, many of today's IP critics are mistaken in regarding IP rights as somehow an aberration from the basic principles of American constitutionalism. At their core, IP rights readily fit within American constitutionalism's framework for the rule of law. Copyrights and patents are specific types of property that the U.S. Constitution was established to protect under law. A disregard for IP rights constitutes an indifference - whether unwitting or not - to principles of American constitutionalism and the rule of law. And such indifference inevitably erodes respect not only for IP rights, but for all property rights.

 

* 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 Senior Fellow of the Free State Foundation.  

 

A PDF of the complete Perspectives may be accessed here.

* * *

 

Earlier Papers in this Series of Intellectual Property Perspectives

 

 

Randolph J. May and Seth L. Cooper, "The Constitutional Foundations of Intellectual Property,"Perspectives from FSF Scholars, Vol. 8, No. 13 (2013).

 

Randolph J. May and Seth L. Cooper, "Reasserting the Property Rights Source of IP," Perspectives from FSF Scholars, Vol. 8, No. 17 (2013).

 

Randolph J. May and Seth L. Cooper, "Literary Property: Copyright's Constitutional History and Its Meaning for Today,"Perspectives from FSF Scholars, Vol. 8, No. 19 (2013).

 

Randolph J. May and Seth L. Cooper, "The Constitution's Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property Rights,"Perspectives from FSF Scholars, Vol. 8, No. 20 (2013).

 

Randolph J. May and Seth L. Cooper, "The 'Reason and Nature' of Intellectual Property: Copyright and Patent in The Federalist Papers,"Perspectives from FSF Scholars, Vol. 9, No. 4 (2014).

 

Randolph J. May and Seth L. Cooper, "Constitutional Foundations of Copyright and Patent in the First Congress,"Perspectives from FSF Scholars, Vol. 9, No. 18 (2014).

 

Randolph J. May and Seth L. Cooper, "Life, Liberty, and the Protection of Intellectual Property: Understanding IP in Light of Jefferson Principles," Perspectives from FSF Scholars, Vol. 9, No. 25 (2014).

 

   

Follow us on Twitter 

Find us on Facebook

 

View our videos on YouTube 

  

The FSF Blog

 

Please consider supporting the Free State Foundation's free market work with a tax-deductible contribution!

  

Donate   


Sign Up for FSF EMails

Join Our Mailing List

The Free State Foundation
P. O. Box 60680
Potomac, MD 20859
Tel: 301-984-8253
Fax: 301-299-5007

www.freestatefoundation.org

 
 
Donate 
 
A Free Market Think Tank for Maryland......Because Ideas Matters
 and FSF are registered trademarks of the Free State Foundation. All trademark and copyright rights are reserved.