Transcript Released! The Free State Foundation's Book Event
"The Constitutional Foundations of Intellectual Property:
A Natural Rights Perspective"
October 26, 2015
On October 26, 2015, the Free State Foundation celebrated the publication of its new book, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective, at the National Press Club, Washington, DC. The book's authors, Free State Foundation President Randolph May and FSF Senior Fellow Seth Cooper, discussed their book, sharing their views on the constitutional foundations of intellectual property and why IP rights are important.
Following remarks by Messrs. May and Cooper, commenters discussed various aspects of the book and intellectual property. Moderated by RANDOLPH MAY, co-author and President of the Free State Foundation, the other participants were:
- SETH COOPER - Co-author and FSF Senior Fellow
- ROBERT ATKINSON - President of the Information Technology & Innovation Foundation
- RALPH OMAN - former Register of Copyrights of the United States, 1985-1993, and the Pravel, Hewitt, Kimball and Kreiger Professorial Lecturer in Intellectual Property and Patent Law, The George Washington University Law School
The transcript should be read in its entirety for an appreciation of all of the views of each participant. Nevertheless, immediately below are selected excerpts in the order of the participants' presentations. These excerpts provide an indication of the various perspectives presented at the session. But, again, the transcript should be read in its entirety in order to obtain a full appreciation of each participant's views.
If you didn't attend the seminar, you can watch the YouTube video of the entire program here.
RANDOLPH MAY
I should say when I speak of intellectual property rights, our book is focused on copyright and patents. Whether or not IP rights should be safeguarded can be discussed and debated in various ways, including a utilitarian approach. That is, do they have utility in advancing some societal goal or another, or in pragmatic terms. And these approaches certainly may have merit in addressing certain issues, especially what we may call "boundary issues," such as the length of copyright or patent terms or the scope of the fair use doctrine. Our book is not about dealing with these contemporary boundary issues. Rather, it is about recovering the Constitution's understanding of intellectual property rights as ultimately grounded in the natural rights of authors and inventors. To this end, the book explores the foundational principles of property, including intellectual property, that informed the Constitution, and it explains how these concepts continue to inform the development of IP rights after the Constitutional Convention through the First Congress and right up to Reconstruction.
So, let me set forth at the outset in very clear terms the two related foundational principles at the core of our book. One, that each person has a natural right to enjoy the fruits of his or her own labors, including intellectual labors. And, two, that a primary purpose of civil government is to protect this natural right through laws that protect private property.
Locke understood that each person possesses a natural right to the fruits of his or her own labor and that the civil society, established by government, is obligated to protect that as a person's property. Now, in Lockean terms, as we say in the book, the product or expression of a person's creative activity or the resulting mixture of a person's labor with his or her own resources to produce something to which he or she attaches value, for example, a book like this or an invention, is that person's own property by right of original acquisition and first possession. We attempt to show in the book, and I think we do, that the Founders in drafting the Constitution, and specifically including the Intellectual Property Clause in the Constitution, accepted the Lockean principle that one person cannot be deprived of his or her natural right to enjoy what he or she has earned by virtue of his or her own labor. And that this natural right necessarily includes the fruit of a person's intellectual labors, such as their writings or inventions.
Thus, it is our contention that this natural rights perspective regarding the safeguarding of property was embodied in the Constitution in Article I, Section 8 of the Intellectual Property Clause, which grants Congress 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."
Here is what we say in the introduction of the book to place our thesis in the broader context of American constitutionalism and the framework of our system of government. "It is our contention that the natural rights perspective on intellectual property offered is consistent with classical liberal concepts concerning the rights of man and responsibilities of government as expounded by thinkers, such as John Locke and James Madison. And this perspective is consistent with the ideals expressed in the Declaration of Independence, reflected in common law precedents at the time of American independence, and embodied in pre-constitutional legislative precedents in the newly independent United States. In short, the intellectual and historical backdrop in which the Constitution of 1787 was adopted and ratified regarded copyrights and patent rights as a form of private property that are rooted in the natural rights of authors and inventors to secure the fruits of their labors.
SETH COOPER
Our book, "The Constitutional Foundations of Intellectual Property," is a distillation of the constitutional logic of copyrights and patents in the American constitutional order. And our book traces the development of that logical concept throughout about the first century of the nation's history.
Now, the text of the Intellectual Property Clause, that is Article I, Section 8, Clause 8 of the Constitution, is pretty simple. So grasping the intellectual background of the Constitution becomes really important to understanding that text and where it is coming from... And I think the finest statement about property rights in that early American context comes from James Madison. In his 1792 National Gazette essay "On Property," he defines property, "In its larger and juster meaning," to involve "everything to which a man may attach of value and have a right which leads to everyone else the like advantage." So in that larger concept of property rights, persons, echoing Locke, have a right of property in themselves, in their faculties, in their possessions, and their labor for their daily subsistence. Madison concluded that the most important property that persons possessed was in their own conscience. That's something intangible.
In the 1780s...the Confederation Congress passed a resolution calling on the states to adopt laws for literary property... [S]everal of the states, actually all of them save one, before the Constitution, adopted their own state copyright laws. And what is particularly interesting about those state copyright laws is that many of them describe copyright or literary property as a property right rooted in a person's natural right. For instance, the Connecticut 1783 copyright law declares: "It is perfectly agreeable to the principles of natural equity and justice that every authority should be secured in receiving the profits that may arise from the sale of his works." The Massachusetts copyright law, in the same year, describes: "The legal security of the fruits of authors' study and industry as one of the rights of all men, there being no property more peculiarly a man's own than that which is produced by the labor of his mind." Many of these states were lobbied personally by Noah Webster through letters and petitions. He spoke before many of them... [T]hroughout all the states, Webster consistently made the case for copyright being rooted in an author's inherent right to reap the financial rewards for his work.
Noah Webster first encountered James Madison when Madison was a member of the Confederation Congress. And so Madison was on the committee that helped prepare that resolution that went out to the states. And they crossed paths again in Virginia where Madison introduced Webster to George Washington as well. And they had some close collaboration in some other matters. By 1787, Madison wrote in his "Vices of the Political System of the United States" memo that he considered one of the vices of the existing Confederation to be "the want of uniform laws concerning literary property." So, Madison clearly shared that concern. Once the Constitution was ratified and went into effect, Madison was in a key position to help actualize things. He was considered the floor manager of the House, for all intents and purposes. And so it was that the First Congress passed the Copyright Act of 1790 and the Patent Act of 1790, both of which were signed by President George Washington.
The Constitution itself is not an expression of abstract theory. It is the practical implementation and application of that theory. So it makes sense that the IP Clause would be very straightforward. But that is in no way to imply a rejection of the underlying theory. The IP Clause secures those rights, which were understood from their source to be rooted in a person's labor. That is what the First Congress acted on. And in the course of the ensuing decades, you see those foundations being built upon.
Abraham Lincoln... described intellectual property, in particular patents, in terms of free labor ideology that was then prevalent in the 1850s. It was certainly rooted in natural rights tradition, but it was also the expression or concept of how a person can gain greater independence and improvement and do so through their own efforts and enterprise. And that of course depends on the principle of free labor, that a person has a right to keep what they earn, that persons have a right to reap what they've sown. Lincoln expressed that and connected that to patent rights in particular in his "Lecture on Discoveries and Inventions," which he gave a half dozen times in the late 1850s. He also made that pretty explicit connection in his "Address to the Wisconsin State Agricultural Society" in 1859, right before he was elected president.
ROBERT ATKINSON
[T]his book, frankly, is not going to convince Public Knowledge or EFF or any of these weak copyright groups, weak IP groups. Hopefully, they might read it, but I would be skeptical that they would shut down Public Knowledge tomorrow and realize the error of their ways. But that is not really the point of the book. I think the point of the book is to really solidify the understanding of IP and copyright on the right because that is what I think has changed over the last -- in a troubling way -- over the last five or so years.
I think for a long, long time there was a general consensus in Washington around the issue of copyright and IP, and the left and the right both had their differences but there was a little middle ground that they agreed upon. For example, they agreed that IP was needed. They agreed that IP drove innovation. And the differences were largely at the margin. The people who are left of center, as a generalized rule, they didn't really fundamentally care about property rights. Property rights to them were a means, not an end. The reason you cared about IP wasn't to protect natural rights, it was to protect innovation and to drive the creation of content. It was an instrumental value for them. And I think for the right, historically, as you have shown in your book, the property rights or natural rights are fundamental.
But be that as it may, it really led to no major differences in how we thought about copyright. People came at it from different value sets and came to generally the same conclusion. The left might be for a little bit shorter terms, the right for a little bit longer terms. But you had a consensus that it was workable. And, unfortunately, what I think we have seen is intellectual property getting caught up in the Washington culture wars.
I think the conservatives -- the Right -- essentially have to think in their own minds, really, where do they stand on copyright because, as I said, I see this split now in the Republican Party here and the conservative movement. And I think your book is a very, very healthy anecdote to that because it grounds people in what most conservatives are grounded in, which is the Constitution.
RALPH OMAN
As the authors stated, copyright started as an exclusive property right in 1790, with the passage of the first Copyright Act. But that exclusivity, that feature that was so important to the Founders, has been whittled away over the past 100 years. Market failure was the rationale. A few users convinced Congress that the free market just wouldn't work. The transactions were too small. They were too numerous. The bargaining powers of the two parties were too unequal or that the time frame needed to arrange a license was too short, and that we really couldn't rely on the free market to set prices and to control access.
But today, digital technology has changed that reality if in fact it ever was a reality. Microchips, little black boxes, they will mediate millions of transactions in a millisecond. They will screen transactions, searching for copyright management information. They will work at the speed of light. With this technology we can restore, in my opinion, the author's exclusive control over their works that the Founders built into the Copyright and Patent Clause. They can license them. They can license them collectively as part of a group. They can make them available for free if they want. They can say no. They can say "yes" if the price is right.
[Committee members] asked me if I was troubled by the length of the bill, by the detail that it got into, even the accounting procedures to be used in determining who got what. I was a good soldier at the hearing. And I said what was expected of me, that it was a technical problem and needed a technical solution. The bill did that. But what I should have said and didn't say, simply, wouldn't it be better, wouldn't it be much simpler to say, "Okay, songwriters, okay record companies, it is your music. You can do with it what you want. You can lock it in a vault for all we care. Just make clear that it can't be copied without your authorization. If you don't want people to make perfect copies on the digital audio tape machines, you can say no. You can sue the manufacturer of the infringing machines, the copying machines, for contributory infringement." That is what I should have said but didn't.
Authors have something to sell, users want to buy. Congress should just reaffirm the historic exclusive property right of the authors, get out of the way and let the parties do a deal. The very best copyright laws have always protected the rights of creators and the powers of the creators against the powers of the companies and others that are money making machines that use the copyrighted works, that build business models like Google that exploit authors' works. That would be ideal.
The Internet is the latest wrinkle that began with the invention of the printing press. The tension between these new technologies and the interest of authors is nothing new. This really shouldn't surprise us. It is the very essence of copyright thinking. The core that makes copyright socially revolutionary, historically unique, and worth fighting for. And I thank the authors, Mr. May and Mr. Cooper, for giving us the ammunition we need to fight that war. This book should be required reading for all Members of Congress, federal judges, and all political stripes from Capitol Hill.
A PDF of the transcript is here.
Please click here to view the YouTube video of the seminar (126 minutes in length).
