In Podcast, Prof. Adam Mossoff Talks Founding Fathers and IP Rights

The January 6th episode of the IP Protection Matters podcast, "The Historical and Constitutional Foundations of Patent Protection," features an interview with Adam Mossoff, Professor of Law at the Antonin Scalia Law School at George Mason University. In addition to being a Senior Fellow at the Hudson Institute and a Visiting Intellectual Property at the Heritage Foundation, Prof. Mossoff is a member of the Free State Foundation's Board of Academic Advisors.

In the podcast episode, Prof. Mossoff discusses the American Founding Fathers' views on intellectual property (IP) rights. As he explains, the Founders "saw intellectual property largely as the same type of property right that arose from the creation of any other type of property right" through their value-creative productive labors. The Founders recognized the importance of protecting intellectual labor and included the IP Clause in Article I, Section 8 of the U.S. Constitution. 

 

Prof. Mossoff then discusses the historical significance of the Constitution's IP Clause, the significance of President George Washington and the First Congress, the differences between IP rights in the American constitutional order and monopolies under old English law, and the importance of IP protections for ensuring the marketability of IP. These basic principles of IP law apply to both copyrights and patents. The latter part of the interview focuses on contemporary patent reform issues. 

 

For an insightful take on IP rights by an excellent scholar, be sure to check out the IP Protection Matters podcast interview with Prof. Mossoff. And for a deeper dive, Prof. Mossoff has published several academic journal articles. 

 

The IP Protection Matters podcast is a project of the Center for Individual Freedom. 

 

P.S. Many of the key themes about the Founders and IP rights in America’s constitutional order that come up in the podcast interview are analyzed in a book that I co-authored with FSF President Randolph J. May, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press, 2015). 

Law Journal Article Endorses American Music Fairness Act

On May 17, the Journal of Legislation published an article titled "Oh Brother, Where Art Thou Royalties? Reflecting on the Emergence of Bluegrass and Appalachian Folk Music in Promoting the American Music Fairness Act." Written by Mark Edward Blankenship, Jr., the article discusses the 2000 movie named in the title as a window into the need for Congress to pass legislation securing full public performance rights in music sound recordings. Existing law exempts terrestrial AM/FM radio stations that broadcast copyrighted sound recordings over-the-air from having to pay royalties to the owners of those recordings. As the article points out, "[t]errestrial radio is the only medium allowed to use intellectual property without copyholders' permission or compensation, which is fundamentally unfair."

The article provides a straightforward legal history of public performance rights as well as their extension to performances of copyrighted sound recordings – except when it comes to terrestrial radio broadcasting. That historical backdrop sets the stage for the American Music Fairness Act (MMA), which has been introduced in the 118th Congress – S.253 and H.R. 791.  The article rightly concludes that "[a]dopting the AMFA would benefit many artists, honor intellectual property owners’ rights, and promote the progress in the arts." 

The AMFA also is the subject of my February 2022 Perspectives from FSF Scholars, "American Music Fairness Act Would Secure Copyrights in Sound Recordings." 

As an important conceptual sidenote, I disagree with the article's statement that "[u]nlike its foreign counterparts that employ a natural-rights view, the United States employs an economical view of copyright protection." In The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press, 2015), Free State Foundation President Randolph May and I cited ample historical evidence that the Founding Fathers as well as jurists and legal scholars of the nineteenth century understood copyrights as natural property rights to the fruit of one's labors. Certainly, Congress takes economic considerations seriously in defining the boundaries of copyright protections. That is consonant with the Founders' political philosophy of natural rights, according to which copyright protections promote progress in the useful arts as well as financial opportunities for creators. 

However, it is true that U.S. copyright law is premised on a different set of principles than foreign countries. Although European regimes are characterized by some writers as being based on “natural rights,” the occasional use of the term in that context can be highly misleading. Different theories of natural rights exist, but when speaking about the American constitutional order, I think it best to speak of the natural rights principles reflected in the Declaration of Independence and held in common by the likes of the American Founders, James Kent, Daniel Webster, Abraham Lincoln, as well as other American statesmen and jurists. In chapter 6 of our book Modernizing Copyright Law for the Digital Age, Constitutional Foundations for Reform (Carolina Academic Press, 2020), FSF President Randolph May and I described European copyright regimes as being premised on a "moral rights" view. And in that book, we warn Congress against importing those foreign concepts into American law because they actually could undermine the protections for American copyright owners.

James Madison: The Father of the Constitution Favored Copyrights

Today is the birthday of James Madison, widely regarded as "The Father of the Constitution." The track record of Madison (March 16, 1751 – June 28, 1836) includes prompting the Philadelphia Convention of 1787, drafting the Constitution, explaining and supporting it in the Federalist Papers, leading the ratification effort in Virginia's state ratifying convention, implementing the Constitution in the First Congress, and managing the proposed Bill of Rights. Not to mention he served as the fourth U.S. President. 

Given Madison's vast contributions to early American political philosophy and constitutionalism, it is easy to overlook his important role in helping to secure copyright protections for American authors and other creative artists. Free State Foundation President and I described James Madison's role in putting copyright protections in the U.S. Constitution in our book, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press, 2015). We provided an abbreviated account of Madison's pro-copyright collaboration with Noah Webster in our November 2015 Perspectives from FSF Scholars, "The Copyright Alliance that Shaped Our Constitution." And we touched on Madison's understanding of property rights, including copyrights, in our September 2015 Perspectives, "Why Intellectual Property Rights Matter: The Founders Believed Ownership of One's Labor is a Natural Right." 

Panel Video on The Common Purposes of IP and Antitrust

Earlier today, I joined the Committee for Justice’s Ashley Baker along with Law Professor Kristen Osenga for a virtual panel discussion on "The Common Purposes of Intellectual Property and Antitrust." Video of the panel, which runs about an hour, is now available online. The panel discussion addressed the differences between intellectual property rights – such as copyrights and patent rights – from harmful monopolies. Along the way, the panel also delved into the role of administration in IP rights, legislative proposals for changing antitrust law, and the merits of the consumer welfare standard. 

My initial comments during CFJ's panel parallel my April 7 Perspectives from FSF Scholars paper titled "The Property Rights View of Copyrights Beats Bogus Monopoly Talk" and a short item I posted on April 9 at the Federalist Society's blog titled "Copyrights are Property Rights, Not Harmful Monopolies." Free State Foundation President Randolph May and I wrote a book chapter with the same name as the CFJ panel in our book Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform (Carolina Academic Press, 2020). 

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).

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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).