To try to get the Constitution ratified, Madison and his two cronies Hamilton and Jay engaged propaganda via the Federalist Papers to try to sell the new central state they were proposing.1 Regarding the provision authorizing patent and copyright law, he wrote in Federalist No. 43 (2):
THE FOURTH class comprises the following miscellaneous powers: 1. A 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. “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.
This is a flat-out lie. Copyright was the result of state censorship followed by the codifying Statute of Anne of 1710—that is, by legislation, not by common law.2 It was not a natural right, a property right, a common law right at all.3 It’s an artificial grant of monopoly privilege by the state.4
I mean Jefferson had written to him in 1789, during the drafting of the Bill of Rights, suggesting the Bill of Rights rein in the patent and copyright clause grants already made in the 1789 Constitution, by (a) explicitly recognizing these grants as monopolies (not “common law” or natural rights), and (b) limiting them to a maximum term. His proposal was to include this in the Bill of Rights:
Art. 9. Monopolies may be allowed to persons for their own productions in literature [copyright] and their own inventions in the arts [patents] for a term not exceeding — years but for no longer term and no other purpose.5
See also Mike Masnick, “RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation,” Techdirt (Dec. 20, 2012), responding to Paul Clement, Viet Dinh & Jeffrey Harris “The Constitutional and Historical Foundations of Copyright Protection,” Center for Individual Freedom [sic] (2012) (see also “CFIF Publishes New Policy Paper: The Constitutional and Historical Foundations of Copyright Protection,” Center for Individual Freedom [sic] (Dec. 11, 2012)):
Over the last week or so, I’ve seen a number of folks in the usual crowd of copyright maximalists cheering on a new “paper” put forth by a group hilariously calling itself the Center for Individual Freedom, supposedly trying to establish the “constitutional and historical foundations of copyright protection.” The “paper” (and I use that term loosely) itself does no such thing. It’s a one-sided polemic about why copyright is property — argued by selectively quoting a few historical claims, often out of context, and ignoring everything else. The six page document (quick read) was actually written by three lawyers… who admit that they work for the RIAA. The basic argument is that copyright is a “natural right,” and that this idea was well established at the time of the Constitution. The framing, then, is that all the Constitution was really doing was codifying a natural right that all agreed was akin to property, and that this right cannot and should not be diminished or taken away.
See also further criticism of the Clement et al. paper in Michael A. Carrier, “Copyright and Innovation: Responses To Marks, Masnick, and Picker,” Wis. L. Rev. Online (2013), which also criticizes another article that relies on the Clement paper, Steven M. Marks, “Debunking the “Stifling Innovation” Myth: The Music Business’s Successful Transition to Digital,” Wis. L. Rev. Online (2013)).
even the American Founders who put the IP clause into the US Constitution in 1787 did not think of IP rights as natural rights, steeped as they were in Lockean ideas. “To the contrary, they evidently viewed copyright as a policy tool, one aimed at promoting the progress of science and useful arts. They begrudged copyright’s interference with natural and common law rights, like the government they formed, as a necessary evil.” Tom W. Bell, Intellectual Privilege: A Libertarian View of Copyright, ch. 3 (draft). The Founders didn’t think Locke’s natural rights views implied that IP was a natural right, and Locke apparently didn’t either.
See, also “Copy-Right or Copy-Wrong: Would Locke Support Copyright?,” Life Examinations (Feb. 28, 2011).
See also Terry Hart, James Madison on copyrighting Thomas Jefferson’s memoirs.
- See Rockwell on Hoppe on the Constitution as Expansion of Government Power (Aug. 3, 2009) . [↩]
- See Karl Fogel, The Surprising History of Copyright and The Promise of a Post-Copyright World; related talk by Fogel. Re legislation, see Another Problem with Legislation: James Carter v. the Field Codes (Oct. 14, 2009). [↩]
- Intellectual Poverty (Jan. 6, 2011). [↩]
- Are Patents and Copyrights “Monopolies”? (Aug. 13, 2013). [↩]
- Thomas Jefferson’s Proposal to Limit the Length of Patent and Copyright in the Bill of Rights. [↩]