Where did copyrights and patents come from?

I once asked an attorney, “Where did copyrights and patents come from? When did Congress pass the first legislation in these areas?” [1] He replied, “Dave, read our Constitution.” So I did, and here is what I learned.

All the laws related to copyrights and patents derive from Section 8 of the United States Constitution. .
Section 8
enumerates various powers. Here is Section 8:


The Congress shall have power:

  • to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

  • To borrow money on the credit of the United States;

  • To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

  • To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

  • To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

  • To provide for the punishment of counterfeiting the securities and current coin of the United States;

  • To establish post offices and post roads;

  • 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;

  • To constitute tribunals inferior to the Supreme Court;

  • To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

  • To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

  • To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

  • To provide and maintain a navy;

  • To make rules for the government and regulation of the land and naval forces;

  • To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

  • To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

  • To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

  • To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.


The key sentence is #8, cited further on in the Wikipedia article, Other powers of Congress:


Congress may promote the progress of science and useful arts by granting copyrights and patents; though perpetual copyrights and patents are prohibited, the Supreme Court has ruled in Eldred v. Ashcroft (2003) that repeated extensions to the term of copyright do not constitute perpetual copyright; also note that this is the only power granted where the means to accomplish its stated purpose is specifically provided for. Courts inferior to the Supreme Court may be established by Congress.


One view of this section is that the Founding Fathers, facing a deadlock due to an original plan to “Design it Until it Drops” (DUD), decided to put out the Constitution Release 1.0 with a list of enumerated powers to be sorted out later. It is interesting and amusing, though not too insightful, to wonder how they picked the order in which the powers were enumerated. [2]

So the ideas of copyrights and patents so central to all discussion of open-source licensing issues date to a single sentence, one that says Congress may promote the progress of science and useful arts.

The Founding Fathers left it up to Congress to sort this out. For example, my daughter Jennifer just graduated from Yale and during her years there I took off an occasional day to visit some of her classes. [3] This last Spring I sat in on a section of a course on the Constitution taught by Prof. Akhill Reed Amar, a recognized expert who is the author of “America’s Constitution: A Biography.” (I bought a copy before attending the class and he graciously signed it for me after the class.) His book runs to 654 pages. The index lists the same three pages (108, 111, 112) for copyrights and patents. Page 108 says, “…just as continental standards for copyrights and patents would create a broad New World market for authors and inventors.” Page 111 says, “The monarch had also enjoyed various powers over naturalization, weights, and measures, patents, copyrights, and coinds that, as we have seen, Article I vested in the legislative branch.” Page 112 says, “the framers at times tried to specify the purpose of a particular power. Patents and copyrights could not be given merely to reward political allies, but only to ‘promote the Progress of Science and useful Arts.'” And that is it — just three sentences in a book of 654 pages

My reading of this is that copyrights and patents were to be legislated by Congress in the public arena, if “full public view,” by legislators, experts, lobbyists, special interests, concerned citizens, and anyone interested. In short, to say copyrights or patents are “evil” is to say that stop signs are “evil.” The copyright and patent laws –and all the institutions supporting them — are but the result of the collective efforts of our legislators, as are the traffic laws that give a policeman the right to give us a ticket if we ignore a “stop” sign.

Fundamental to both copyrights and patents is the notion of “intellectual property”. See Intellectual property. One view of “intellectual property” is that it is the value created in the form of a copyright and patent that is protected by the copyright and patent legislations. It is no more, or no less, “evil” or “good” than the notion of patents and copyrights themselves.

Notes:

1. The attorney is the attorney who was on the conference call with Bruce Perens mentioned in Jikes Archives, in the Jikes Coupon post. He is also the attorney “I” mentioned in the post Which non-existent computer company was almost founded by two IBM IP attorneys?.

2. For example,

  • Taxes, commerce, immigration, counterfeiting and the post office all come before copyrights and patents.
  • The army, navy, militias, declaring war, and piracy all come after copyrights and patents. Are IP attorneys more important than generals and admirals? (I suspect they think they are.)
  • Since the post office comes before copyrights and patents, are mailmen more important than IP attorneys? Than generals and admirals?

3. I wish I had sat in on more classes. The same day I attended Amar’s class on the Constitution I also sat in on a class about the Civil War. The professor gave an wonderful explanation of the Emancipation Proclamation using contemporary materials such as letters as his primary materials.

Copyright (c) 2006 by David Shields. Licensed under the Apache License 2.0.

2 Comments

  1. Posted October 20, 2006 at 05:58 | Permalink | Reply

    Copyrights began significantly earlier than the American Constitution. Wikipedia has an excellent article on the history of copyrights at,

    http://en.wikipedia.org/wiki/History_of_copyright

    The Statue of Anne 1710 is the first codification in western law.

  2. Posted October 23, 2006 at 17:20 | Permalink | Reply

    Richard Stallman correctly makes the key point that the patent, trademark and copyright systems are all very different and have nearly nothing in common. There’s nothing to be gained by lumping them all together into one category that is useful to “progress”, only to “property” ideas that tend to support all claims to make these “rights” as permanent as a deed in land. That’s not what they’re intended to be.

    Patents are instructions, as are some copyrighted materials like textbooks. Trademarks are not – they signal instead the source of the material or product or service. Copyrights protect creative works also and are to ensure authors get paid for making popular works.

    One can stand for strong patent protections on genuine instructions to do genuinely useful and novel things, and for strong trademark protections to prevent people lying about the origins of products, while absolutely opposing patents on scientific or mathematical principle (like software which is nothing but), and also opposing the use of trademark “dilution” laws to silence critics who are not “passing off” products but only telling others what they think about the actual trademarked product and company behind it.

    Recognizing that instructions, social trusts and creative works are three wholly different kinds of benefit to society is the starting point to an actual analysis of the current system.

    Failing to recognize that leads only to stupidity.

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