Is Copyright a Property Right?

Last Friday I attended a debate on Capitol Hill entitled “Is Copyright a Property Right?” which was sponsored by America’s Future Foundation. The answer to the question was “yes” from both sides, but the debate picked up steam when the question “Is copyright a natural right?” arose.

Derek Khanna, a Yale Law Fellow, argued that copyrights are government-granted privileges and are, by no means, natural. President of American Commitment Phil Kerpen said that intellectual property (including copyright), like any form of property that man can have possession of, is a natural right. He said that the Founding Fathers embodied “literary property” into our Constitution for that reason.

Free State Foundation scholars consider intellectual property rights as natural rights, just as the Founders did. 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,” and then goes on to say that “a man has a property in his opinions and the free communication of them.” One Perspectives from FSF Scholars entitled “Reasserting the Property Rights Source of IP” uses this essay by Madison to discuss the institutional role shared by intellectual and physical property in defining and limiting governmental power.

During the debate, Kerpen also referred to James Madison who said in the Federalist Paper No. 43, regarding copyright, that “the public good fully coincides…with the claims of individuals.” (It should be noted that this is the only direct reference in the Federalist Papers to the underlying nature of intellectual property that Congress is charged with securing.)

Kerpen also quoted from Chapter 5 “Of Property” of John Locke’s Second Treatise of Civil Government in which Locke said that man is the “master of himself,” and therefore owns the rights to his creative thoughts and ideas.

Ultimately, both gentlemen in the debate agreed that copyright is very important for securing the ownership rights to creative ideas and allowing for more competition in artistic markets. The appropriate length and terms of copyright were still left up in the air. Seven Perspectives from FSF Scholars have addressed the constitutional foundations of intellectual property and the importance it holds for positively impacting the economy.

1.       Randolph J. May and Seth L. Cooper, "The Constitutional Foundations of Intellectual Property," Perspectives from FSF Scholars, Vol. 8, No. 13 (2013).

2.       Randolph J. May and Seth L. Cooper, "Reasserting the Property Rights Source of IP," Perspectives from FSF Scholars, Vol. 8, No. 17 (2013).

3.       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).

3.

4.       Randolph J. May and Seth L. Cooper, “The Constitution's Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property Rights” Perspective from FSF Scholars, Vol. 8, No. 20 (2013)

5.       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).

6.       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).

7.       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).