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).
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