Reaffirming the Foundations of IP Rights: Copyright and Patent in the Antebellum Era
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 eight papers in the IP series are at the bottom of this message. A PDF version of the complete new Perspectives is here.]
Introduction
In American constitutionalism the Antebellum era is important not for staking out new principles, but for developing and applying those principles already established in the written Constitution. Generally considered the period from before the Civil War back to the War of 1812, the Antebellum era saw the furtherance and consolidation of the Founding era's solicitude for protection of individual private property rights. Constitutionalism in the Antebellum era is particularly important for building upon the Constitution's foundational concepts of copyright and patent. In the time between the War of 1812 and the Civil War, the importance of protecting intellectual property (IP) rights was widely perceived and appreciated. As a result, the Antebellum era was a period of advancement for the protection of IP rights.
By the early 1800s, protection of copyright and patent rights had become established concepts within the American constitutional order. Article I, Section 8 of the U.S. Constitution included the IP Clause, empowering Congress to guarantee to authors and inventors the exclusive rights to the proceeds of their writings and inventions for limited periods. The First Congress enacted the Copyright and Patent Acts of 1790. Subsequent Congresses made minor amendments to the federal patent registration process and expanded copyright protection to historical prints, etchings, and engravings in 1793 and 1802, respectively. Authors and inventors began registering their writings and inventions under the new laws. And courts of law opened their doors to the first copyright and patent infringement lawsuits.
Over the next half-century, American constitutional concepts of copyright and patent protection were reinforced and expanded. Following in the thought paths of Founding era predecessors, prominent Antebellum era thinkers overwhelmingly regarded copyrights and patents in light of natural rights and property rights principles. According to this view, persons are by nature entitled to the fruits of their labor - that is, to their property. Government exists to safeguard individual rights to acquire, use, and transfer property according to just and equal laws.
This natural rights basis for copyright and patent is evidenced in the works of prominent law writers of the Antebellum era. In their highly influential legal treatises on American law and constitutionalism, Chancellor James Kent and Justice Joseph Story emphasized the protection of property rights as a core function of government. Both Kent and Story characterized copyrights and patents as private property acquired by an individual's intellectual labors. Story considered it "a poor reward, to secure to authors and inventors, for a limited period, only, an exclusive title to that, which is, in the noblest sense, their own property." Regarding the IP Clause's provision for securing copyrights and patent rights, Story contended "it is impossible to doubt its justice, or its policy, so far as it aims at their protection and encouragement." Kent similarly wrote in favor of the "justice and the policy of securing to ingenious and learned men the profit of their discoveries and intellectual labor."
A natural rights understanding of copyright and patent also figured prominently in U.S. Supreme Court and federal circuit court jurisprudence. Antebellum era decisions by the Supreme Court and lower courts developed legal doctrines for protecting IP rights and for ascertaining the limits of those rights. Court decisions by Chief Justice John Marshall and others applied to patents the vested rights doctrine - also rooted in natural rights principles. And the courts would apply legal doctrines related to real property to IP claims. Justice Story advocated a liberalized understanding of patent law that promoted IP protections for inventors. In this, Story was urged on by Kent and by Daniel Webster. As a statesman and as the most influential constitutional lawyer of the Antebellum era, Webster - often called the "defender of the Constitution" - was a defender of patents and for copyrights.
While the most notable Supreme Court decision of the era, Wheaton v. Peters (1834), rejected the idea of a perpetual common law copyright, it did so based principally on federalism considerations. Despite their differences, the Justices of the Supreme Court in
Wheaton v. Peters agreed on the conceptual premise that an individual's rights to the fruit of his or her intellectual labors was the subject entrusted to Congress under the Constitution's Article I, Section 8 Intellectual Property Clause. Rather than rely on a substantive body of federal common law of copyright inherited from Britain, Wheaton v. Peters offered a more plausible and straightforward application of the IP Clause's provision that "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."
Legal doctrinal developments related to IP rights were paralleled by Congressional and Presidential actions reinforcing and expanding copyright and patent protections. The Antebellum era saw the first major revisions to federal copyright and patent laws since the 1790s. IP rights in copyrights and patents were enhanced in important respects. Legislative reforms expanded protection terms for both authors and inventors. And legislation improved administrative processes for copyright registrations and patent applications.
In 1831, Congress passed its first major revision to U.S. copyright laws since the First Congress. In conjunction with adoption of the Copyright Act of 1831, author and lexicographer Noah Webster vigorously urged a natural rights understanding of literary property. The 1831 Act expanded copyright terms, and permitted the heirs of authors to claim a right in the renewal of those terms. Additional legislation amending copyright laws passed in 1819, 1834, 1846, 1855, 1856, 1859, and 1861, supported by the likes of statesmen such as Henry Clay and Daniel Webster.
Likewise, in 1836, Congress passed its first major revision to U.S. patent laws since 1793, again at the urging of Clay and others. The Patent Act of 1836 officially established the United States Patent Office and provided for additional personnel to process patent applications. The 1836 Act also included expanded protection terms to inventors. Congress passed other patent law amendments in 1832, 1837, 1839, 1842, 1848, 1849, 1851, and 1861.
That Congress, in an era of property rights consciousness, would so frequently pass legislation congenial to copyright and patent protection, indicates the solicitude of lawmakers toward the IP rights of authors and inventors.
The fact that Jacksonian hostility to monopolies and perceived monopolies held currency at least among certain segments of the population in the decades leading up to the Civil War should not be overlooked. Yet, significantly, politicians who railed against monopolies endorsed IP rights at the same time. Avowed anti-monopolists such as Andrew Jackson, Martin Van Buren, and James K. Polk signed legislation expanding copyright as well as patent protections. They also signed individual patent approvals as part of their Presidential duties. That indicates a recognition of principled differences, rooted in the Constitution, between mere government favoritism in form of business or industry charters on the one hand and baseline protection of an individual's rights to the proceeds from his or her writings or inventions on the other.
All told, Antebellum era legal treatises, Supreme Court and federal circuit court jurisprudence, as well as adoption and implementation of Congressional legislation evidence a shared conceptual understanding about copyright and patent protection rooted in natural rights principles. In this respect, Antebellum era thinking marked the continuation of a consistent line of thought about the basic nature of intellectual property rights in the American constitutional order. Recognizing the principled commitment to copyright and patent protection that permeated this important period of history should lead to a renewed understanding and appreciation that those enduring intellectual property rights principles remain true today.
* 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.
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Earlier Papers in this Series of Intellectual Property Perspectives
Randolph J. May and Seth L. Cooper, Intellectual Property Rights Under the Constitution's Rule of Law, Perspectives from FSF Scholars, Vol. 9, No. 38 (2014).
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).
