Wednesday, March 11, 2015

A Response: Towards a Real Pro-Innovation, Pro-Creator, Pro-Consumer Copyright Agenda

A coalition of organizations has distributed a statement entitled “Supporting a Pro-Innovation, Pro-Creator, Pro-Consumer Copyright Agenda” to the members of the 114th Congress. While there are aspects of the statement with which I agree, in certain respects its fundamental emphasis is misplaced. This means that, as a matter of fact, the statement is not “pro-innovation, pro-creator, pro-consumer,” as its signatories proclaim.

First, although the coalition statement is about copyright and the Copyright Act, it studiously avoids mentioning “property,” “intellectual property,” or “property rights.” The Copyright Act secures the rights of artists, authors, songwriters, filmmakers, and other creators of copyrighted works to effectuate the Founders’ understanding that copyright is a property right that should be secured by the Constitution. In James Madison’s 1792 essay, “On Property,” he defines property as “everything to which a man may attach a value and have a right.” Madison then goes on to say that “a man has a property in his opinions and the free communication of them.” The point is that it is difficult to properly address copyright law, as the statement purports to do, if you don’t begin by acknowledging that the subject matter involves a property right.

The first paper in the series of Perspectives from FSF Scholars on foundational principles of Intellectual Property, “The Constitutional Foundation of Intellectual Property,” explains the Founders’ perspective on intellectual property rights:

Classical liberal political philosophy was a formative influence on the framers and ratifiers of the U.S. Constitution. According to this philosophy, especially the works of John Locke, government exists to protect natural rights to life, liberty, and property. This classical liberal philosophy defined ‘property’ broadly to include one's person, one's faculties, and the fruits of one's labor. Lockean natural rights philosophical premises, as understood and adopted by James Madison and other of our Founders, confirm the status of copyrights and patents as genuine forms of property, on par with real or personal property.

The coalition statement asserts that “[a] vibrant public domain is a core component of creativity and knowledge” and the “public domain is the reservoir that nourishes creativity.” It is not necessary to denigrate a properly delimited public domain to point out that this formulation misplaces where the emphasis should lie. A proper statement would declare, instead, that “securing intellectual property rights under the Constitution’s IP Clause is a core component of creativity and knowledge.” Protecting IP rights is at the core of providing authors and other creators of content with the necessary incentives and rewards to create works that the public will value.

The most important attribute of private property is the ability of property owners to exclude others. Of course, a “public domain” is just the opposite. While there is a place for a properly delimited public domain, in general, government-mandated “free” access will not encourage creative content, nor will it allow creators to allocate their works in the manner of their choosing or lead to economic benefits for society as a whole.

Although the coalition statement declares support for free expression, it is simply not true that “copyright laws stifle free speech.” Protection of copyright is fully consistent with the First Amendment’s protection of freedom of speech. In the sixth paper in the IP series of Perspectives from FSF Scholars, “Constitutional Foundation of Copyright and Patent in the First Congress,” the proper relationship between the First Amendment and copyright is explained:

That the First Congress saw fit to include copyright and patent in its ambitious, historic legislative agenda suggests its members found intellectual property especially important to furthering the new nation’s economic, artistic, and technological progress. Passage of the separate Copyright and Patent Acts also indicates a consensus regarding the legitimacy and efficacy of pro-IP policy – a consensus conspicuously absent when it came to Congressional deliberation on other matters. Even more important, the First Congress’s securing of copyrights and patents amidst all its other constitution-implementing business is indicative of IP’s consistency with the logic of American constitutionalism. In particular, the legislative record of the First Congress creates a powerful inference that its distinguished members believed that the First Amendment and IP are, at their conceptual foundations, in harmony.

The coalition statement makes a valid point that “a heavy-handed regulatory approach will only stifle” innovation and creative content. But it is a mistake to equate ensuring protection of copyrighted works with a heavy-handed regulatory framework.

The statement’s intimation that protecting copyright somehow is the same as protecting a monopoly is off-base. The Perspectives from FSF Scholars, “The Constitution’s Approach to Copyright: Anti-Monopoly and Pro-Intellectual Property Rights,” addresses the difference between protecting copyright and government-conferred monopolies:

Above all else, the U.S. Constitution recognizes the uniqueness of copyright and patent. At the time of the nation's founding, basic differences between government-conferred monopolies and individual IP rights were well known. The Founders were familiar with Britain's sorry history of Crown-chartered monopolies. They were likewise familiar with attempts by English common law courts and by Parliament to restrict such monopolies and to protect IP rights for authors and inventors.

While the Founders held an anti-monopolistic outlook, at the same time they supported limited protections for copyright and patent, placing the power to establish those protections in the fundamental law of the land. Article I, Section 8, Clause 8 of the U.S. Constitution grants Congress 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." In other words, it is clear that the framers and ratifiers of the Constitution made a conscious choice to protect individual IP rights and, at the same time, to rely on certain constitutional safeguards against monopolies.

In sum, although there are parts of the coalition statement that, taken alone, provoke little disagreement, by downplaying the crucial role played by intellectual property rights in incentivizing creative works, the statement’s emphasis is misplaced. Without doubt, IP rights protections incentivize artistic, commercial, and scientific advances for the benefit of society and the public at large.

If you are interested in learning more about foundational principles of intellectual property within the context of American constitutionalism, please delve into the Free State Foundation's series of papers exploring these principles.

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 inThe 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 Jeffersonian Principles," Perspectives from FSF Scholars, Vol. 9, No. 25 (2014).

Randolph J. May and Seth L. Cooper, "Intellectual Property Rights Under the Constitution's Rule of Law," Perspectives from FSF Scholars, Vol. 9, No. 31 (2014).

Randolph J. May and Seth L. Cooper, "Reaffirming the Foundation if IP Rights: Copyright and Patent in the Antebellum Era," Perspectives from FSF Scholars, Vol. 9, No. 38 (2014).

Randolph J. May and Seth L. Cooper, "Adding Fuel to the Fire of Genius: Abraham Lincoln, Free Labor, and the Logic of Intellectual Property, " Perspectives from FSF Scholars, Vol. 10, No. 2 (2015).