On The Constitutional Reasons Behind Copyright And Patents
from the might-as-well... dept
Last week, when I wrote about Microsoft being the latest in a long line of companies or industry lobbying groups to try to put together a one-sided educational campaign, to try to convince young people that intellectual property was sacred, I suggested that it was about time that someone put together a contrasting “educational” campaign that wasn’t biased by the companies providing it. A couple folks asked me to put together just such a campaign — which, unfortunately, I don’t have the time or resources to do. However, I figured that I could at least use the blog to cover some of the key points that any such educational campaign should contain. With that in mind, I’ll be running a short series of posts, like my earlier series on economics, that will look at some topics having to do with what, today, is called “intellectual property.”
To kick it off, I wanted to discuss the very rationale for intellectual property rights in the US. While many people assume that there’s always been strong support for things like copyright and patents in the US, that’s not the case at all. Thomas Jefferson and James Madison, who were the main players involved, were actually quite skeptical of the concept. Both talked at length about the subject, but a brief quote from each should give you a sense of their feelings. Thomas Jefferson’s eloquent statement read thusly:
“Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”
He then goes on to note that there can be cases where society chooses to create monopolies “as an encouragement to men to pursue ideas which may produce utility,” but also that “other nations have thought that these monopolies produce more embarrassment than advantage to society.” Clearly, he saw both the good and bad that such monopolies provide, and knew he was treading a fine line. James Madison felt equally so:
“But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.”
Yet, after discussing it back and forth in a series of letters, the two agreed to include the following in the Constitution, in Article 1, Section 8:
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;
And with that, the basis of copyright and patents was born in the US. However, it was clearly done with ambivalence, and the recognition that such “exclusive” rights could have more downsides than advantages. Note, also, that they were clear in their language, that the sole purpose of granting these exclusive rights was “To promote the Progress of Science and useful Arts.” From that reading, it should be clear that any use of these types of monopolies in ways that do not promote the progress of science and useful arts is not covered by the Constitution at all.
These days, this language has been twisted. Supporters of stronger copyright and patent laws often point to this clause in the Constitution, claiming that it means that all of these types of monopolies, by their nature, “promote the progress.” Yet, given Jefferson and Madison’s own words, it is clear that this was not the intention at all — and both were quite worried about how these rules could be twisted. For years, Jefferson was able to prevent that by managing the patent system himself. Yet, it didn’t take all that long for problems to occur once he no longer was there to watch over the system.
Next up, I’ll take a look at the “big three” categories that are often called “intellectual property”: copyright, patents and trademarks.
Links to other posts in the series:
- On The Constitutional Reasons Behind Copyright And Patents
- Patents, Copyrights And Trademarks, Oh My!
- If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?
- What Kind Of Progress Are We Promoting?
- Why Do Patents Tend To Cause More Harm Than Good?
- The Case For And Against Software And Business Model Patents