For all the rights guaranteed by the Bill of Rights, which celebrates its 229th birthday this week, there is one that you won’t find: the right to intellectual property, specifically patents or copyrights. This was covered in Article I Section 8 Clause 8, which states that “The Congress shall have 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.”
Although the so-called patents and copyright clause is just as much a part of the Constitution as the First and Fourth Amendments, there is a significant misconception out there which must be corrected. While Congress has wide latitude to set copyright and patent laws that grant authors and inventors various rights, those patents and copyrights themselves are not constitutionally guaranteed. The fact the Framers provided for patents and copyrights in the Constitution, and that Congress first made use of this authority soon thereafter, can be (and is) used as a useful rhetorical flourish by those promoting stronger intellectual property rights. One need not be a card-carrying Tea Party Patriot to invoke our nation’s Founders to justify a position.
Everyone is entitled to a little hyperbole, but problems emerge when a power granted to Congress is confused with a right guaranteed to all citizens. These two are not the same thing, and many people who should know better go beyond rhetoric when they confuse the two. Kevin Madigan of the Center for the Protection of Intellectual Property described copyright as a “constitutionally guaranteed property right.” On Constitution Day 2016, the U.S. Chamber of Commerce said “intellectual property rights are fundamental rights.” In the preface to The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective, Randolph J. May and Seth L. Cooper claim “intellectual property (‘IP’) rights should be defended simply by virtue of the fact that, indeed, they are rights explicitly secured by the Constitution…they are in and secured by the Constitution.” (Emphasis in original).
This is simply not the case. Unlike the rights explicitly laid out in the Bill of Rights, there is no constitutional right to intellectual property. Congress has the power to establish a system of intellectual property laws, of course. It did so in the first Congress and has updated those laws numerous times since. (Curiously, I have yet to see those who preach the wisdom of the Framers push for a return to the copyright or patent acts passed by the first Congress). But there’s a world of difference between giving the government the power to do something and claiming that you have a constitutional right to that something.
This discussion isn’t just a matter of people being right or wrong about the nature of intellectual property as a constitutional right. Having a patent and copyright system is a good idea, and reasonable people can disagree about what IP protections will produce the best outcomes. Placing intellectual property rights on an unearned moral high ground muddies what should be a technocratic debate about innovation policy.
As a matter of positive law, intellectual property rights exist. But once the use of the term “right” goes beyond its technical context and starts to influence the general debate surrounding patent and copyright policy, the debate becomes moralized and gives those in favor of more hawkish intellectual property laws a rhetorical cudgel.
When you call a public franchise a right, the debate becomes far more heated–a “thief” is far easier to condemn than an “infringer.” Writing just days after the beginning of the George Floyd protests and subsequent unrest, Keith Kupferschmid of the Copyright Alliance analogized the Internet Archive’s National Emergency Library to “throwing bricks through their windows and looting [authors’] houses.” This analogy is beyond tone-deaf given the context, but made possible through the elevation of copyright and patents as private rights rather than tools to promote a specific policy outcome. As Clifford Bob put it in his book Rights as Weapons:
Notwithstanding the power of the legal realist perspective, there is a critical moral dimension to rights that legal realists have largely overlooked. Rights gain their tactical usefulness in part from their ability to galvanize constituents and third parties into action, and this in turn hinges on the ethical pull they exert on those audiences. Countless members have enlisted in movements and militaries, believing in rights. People have protested, fought, and died in pursuit of rights and, more fundamentally, their substantive goals. Rights claims resonate across national borders and cultural communities. Rights gain acclaim and power because masses of people believe that they and the ends they help realize are good–and right.
Bob’s book deals with the use of rights as weapons in far more extreme cases than this. I do not anticipate the RIAA holding an open-carry rally in Washington to demand a notice-and-staydown system or Disney threatening secession if Steamboat Willie enters the public domain. But the way we talk about legal protections matters. Any time a merely good idea is elevated to the status of an inviolable right, it’s necessary to correct this conception. And what better time to do so than when celebrating the formalization of individual rights which stand on firmer ground?
Before proceeding, two caveats are necessary. First, when I argue that patents and copyrights are not constitutionally guaranteed rights or deserving of the moral status we give to other individual rights, I am not saying that they cannot be assigned the rights we associate with property. The Patent Act quite explicitly states that “[s]ubject to the provisions of [Title 35], patents shall have the attributes of personal property.” The Copyright Act assigns, “[s]ubject to [Title 17] sections 107 through 122, the owner of copyright…the exclusive right” to reproduce, perform, and prepare derivatives of a protected work. This is an important distinction, and the statutory assignation of a legal right has constitutional implications. It would be ridiculous to say that intellectual property rights don’t exist; as a matter of positive law, they clearly do. However, if the right to something depends on a statute explicitly creating it, then we cannot say that it is a constitutional right.
Second, though I will argue that intellectual property rights are in tension with other constitutional rights, I am not arguing that they are per se bad. After reading this piece, you can walk away fully convinced that intellectual property rights are not guaranteed by the Constitution, are in tension with other constitutional rights, and don’t deserve the moral treatment we give to property, but still view the current regime (or perhaps one with more expansive intellectual property laws) as good policy. I believe this view is incorrect, but the prior claims are entirely consistent with a utilitarian calculus determining that intellectual property laws are a net good and we should strengthen them.
Reading the Constitution
As discussed above, it is popular to justify legislation, jurisprudence, and executive actions that strengthen intellectual property as keeping good on a promise guaranteed by the Constitution, that promise being authors’ and inventors’ “exclusive Right[s] to their respective Writings and Discoveries.” But unlike the promise against laws restricting freedom of speech, unreasonable searches and seizures, or uncompensated takings, a promise for a copyright or patent is nowhere to be found in The Constitution.
The patents and copyright clause of the Constitution is housed in Article I, Section 8, which outlines the powers specifically enumerated to the United States Congress. The very beginning of the first clause, (“The Congress shall have Power To…”) makes it quite clear that this is a list of things Congress can do, not a list of affirmative duties or individual rights to the benefits of congressional action. Clause 2 gives Congress the power “To borrow Money on the credit of the United States,” but no reasonable person would say they have a right for the federal government to run a deficit. Clause 11 gives it the power “To declare War, grant Letters of Marque and Reprisal [commission privateers], and make Rules concerning Captures on Land and Water,” but it would be nonsense to say that you have a right to be at war or be a privateer.
Other clauses of Section 8 grant Congress powers which it would be unthinkable for the legislature to not exercise. The judiciary would grind to a halt without “Tribunals inferior to the supreme Court” (clause 9), national security would be jeopardized without an army or navy (clauses 12 and 13), and it would be ridiculous to allow counterfeiting to go unpunished (clause 6). It would be legislative negligence to not pass any laws to address these issues, but nobody’s constitutional rights are violated if we don’t have a post office (clause 7).
Still, some confusion remains. In the introduction to Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright, David Newhoff claims, “this foundation for patent and copyright law [Article I Section 8 Clause 8] is in fact the first mention of any rights expressly protected for individual citizens of the new nation, predating the Bill of Rights by nearly four years.” This claim is false for two reasons. I have already discussed why it’s wrongheaded to conflate a constitutional authority with an individual constitutional right. But the idea that there are no rights expressly guaranteed before the Bill of Rights is also wrong. The following individual rights are expressly guaranteed by the original U.S. Constitution:
- The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (Article I Section 9)
- No Bill of Attainder or ex post facto Law shall be passed. (Id.)
- No State shall…pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, (Article I Section 10)
- No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court [and] no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. (Article III Section 3)
- The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. (Article IV Section 2)
A reasonable person can argue that habeas corpus–as foundational a legal doctrine as can be imagined–is described as a “privilege” in the Constitution, or that prohibitions against bills of attainder (a law which declares someone guilty of a crime without a trial) restrict the powers of Congress and the States. But everyone would say that individuals have rights under the First Amendment, even though the text of the amendment places a prohibition on Congress from passing certain laws. These provisions of the original Constitution are clearly designed to protect individuals from the government by placing hard barriers on what it can do. They are different from the rights guaranteed by the Bill of Rights, but they are designed to protect individuals all the same.
In short, a basic understanding of Article I Section 8 clearly shows that no guarantees of intellectual property are made, and that Congress is the one that shapes the contours of the nation’s intellectual property laws.
A Few Hypotheticals
For a second argument against patents and copyrights’ status as a constitutional right, let’s imagine a few legal hypotheticals. Congress could, if it were so inclined, pass and the president could sign into law a bill that stopped all patent grants and made any and all works “fixed in any tangible medium of expression” after the date of enactment ineligible for copyright protection. For good measure, this law would also pull the U.S. out of all treaties and international agreements that require us to fulfill any other obligations related to patents or copyrights. All valid patents granted up to that date would remain in effect, as would all copyrights, until their terms expired. In other words, twenty years after the passage of this act there would be no patents in effect in the United States. About 150 years or so later (depending on how long the people who create copyright protected works live), copyright would cease to exist in the United States.
This bill would not be a good idea. But this isn’t relevant if we’re talking about whether or not something is a constitutional right. To quote Antonin Scalia, “It is entirely possible for a law to be really, really stupid and yet be constitutional.” And this really, really stupid law would be perfectly constitutional. Who would a would-be patent or copyright holder sue after this law goes into effect? Nobody. That’s because, as stated above, while Congress has the power to create patent and copyright laws it is under no obligation to do so. It would be like suing for not being taxed or not having lower courts.
Now let’s up the ante: say that tomorrow Congress and the President decided to fully repeal all patent and copyright protections in the United States and withdrew from all treaties protecting intellectual property. Every patented invention and work covered by copyright would go into the public domain once the bill has been signed into law. This bill would raise constitutional issues, but not under the patents and copyrights clause. If the government were to make public domain the claims of an otherwise valid patent or copyright, the rights holder may be able sue under the takings clause of the Fifth Amendment. In March, the Congressional Research Service wrote:
When legislation operates retroactively to invalidate a patent or diminish patent rights, however, it raises issues under the Takings Clause of the Fifth Amendment to the U.S. Constitution. The Takings Clause states that if “private property [is] taken for public use” by the U.S. government, it must provide “just compensation.” The Supreme Court has suggested several times that patents are private property under the Takings Clause, but it has never held so explicitly. Presuming that patents are private property under the Fifth Amendment, legislation that retroactively impairs patent rights could give rise to a constitutional claim for just compensation. Recognizing this, Congress has often provided for compensation in past legislation that has retroactively invalidated patents. For example, the Atomic Energy Act of 1954 “revoked” existing patents on “any invention or discovery which is useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon,” while providing a process to provide just compensation to any such patent holder.
While there likely are Takings Clause implications of removing IP rights, it’s important to note that both patent and copyrights are “subject to” the provisions of their respective titles. For patents, this means compulsory licensing under 28 USC 1498 or the march-in rights of the Bayh-Dole Act. For copyright, this means fair use, first-sale, and the host of other non-infringing uses. The government operates well within the scope of its power when it grants the exclusive right to an inventor or author to their patent or copyright, and it would be deeply problematic for the government to willy-nilly ignore or reject those rights absent some other provision of law. But none of this has anything to do with whether intellectual property is itself a right. In this second hypothetical, you would sue the federal government under the takings clause, not the patents and copyright clause.
Finally, let’s look into the past to see why intellectual property isn’t constitutionally guaranteed. The Constitution was ratified on June 21, 1788, and the First Congress of the United States began on March 4, 1789. The Patent Act of 1790 was signed into law on April 10, 1790 and the Copyright Act of 1790 was signed into law on May 31, 1790. For intellectual property to be a “right” as understood in the context of the U.S. Constitution, then for the first year or so of its existence under the Constitution, the United States was violating the rights of its citizens under the patents and copyright clause. This is, needless to say, a rather silly thing to argue.
All three of these examples point to the same basic conclusion: it is well within the power of Congress to pass intellectual property laws, and the rights conferred by those laws cannot be done away with frivolously. But in no way, shape, or form does this imply that the Constitution itself guarantees a right to intellectual property.
Intellectual Property Infringes on Rights
I could end this essay by simply stating that intellectual property rights are not constitutionally guaranteed, and any claims to the contrary are manipulative hyperbole. But this would not be enough, as intellectual property has serious implications for other, more clearly established rights. Once again, some clarification is in order. My position is that intellectual property is in tension with other rights–specifically property and free speech rights–not that they are always and everywhere in conflict with them. My right to swing my fist and your right to not have your teeth knocked are in tension, but as long as my fist doesn’t make contact with your teeth there’s no problem.
It is also possible to take the argument that intellectual property is everywhere and anywhere an interference with private rights too far. In a trivial sense, the ability to prohibit the reproduction of a protected work does interfere with my property rights. If I own a physical book, a scanner, and server to host information, is it not an infringement of my property rights to stop me from scanning that book and putting it online? If I own all the components necessary to build a patented mousetrap, isn’t the ability to prohibit the assembly of that mousetrap an infringement on my right to those components? Is my freedom of speech not restricted when I am not allowed to recite or print a work covered by copyright in its entirety? Such acts of copyright and patent infringement reduce the ability of the inventor or author to collect monopoly rents, but that is not at all the same thing as an actual infringement on property rights. While this may be the case, it would be a bridge too far to maintain that this restriction on one’s property or free speech rights is so severe that it justifies throwing the baby out with the bathwater and doing away with patent and copyright laws altogether.
It’s possible to justify a trivial infringement on well-established private rights if doing so makes possible a system of patents and copyrights and the benefits that having such a system brings. But that does not mean that a more expansive regime of intellectual property rights cannot interfere with private rights in concerning ways for those who care about both.
Intellectual property laws significantly interfere with the right of individuals to use and dispose of their property as they see fit. The anti-circumvention provisions of the Digital Millennium Copyright Act are perhaps the most egregious example of this–they are an affront to the basic idea that someone can fully own and dispose of their property as they see fit. In the realm of patents, every patent represents a small claim on what another may do with their physical property. If Annie owns all the components necessary to build a mousetrap but Bob holds the patent to that mousetrap, the rights Annie has to those components have been reduced. As my colleague David Bookbinder and I wrote in an amicus brief for United States v. Arthrex:
Immersed as we are every day in a sea of patented items, it is easy to forget that each one of those items represents a denial of the most fundamental of all property rights: to do whatever we want with the things we own. If Smith invents a widget and sells it to Jones, it now belongs to Jones and, like anything else she owns, she has the right to do whatever she wishes with it, including making and selling as many identical widgets as she wants. But if Smith patents that widget, then Jones may not also make or sell those widgets. Thus, by definition, patents eliminate peoples’ fundamental right to do whatever they want with their own property. (Emphasis in original).
Robert Nozick, who was no slouch when it came to protecting private property rights, identified the fact that while the exclusivity created via a patent doesn’t directly harm another’s ability to use their property, it can have that effect down the line:
An inventor’s patent does not deprive others of an object which would not exist if not for the inventor. Yet patents would have this [deprivation] effect on others who independently invent the object. Therefore, these independent inventors…should not be excluded from utilizing their own invention as they wish. Furthermore, a known inventor drastically lessens the chances of actual independent invention.
Nozick’s argument is that while a temporary monopoly on a given invention doesn’t harm someone’s property rights if they had no ability to bring that invention into creation in the first place, the possibility of independent invention raises the potential that exclusive rights could infringe on another’s property rights in a very practical way.
There’s also the ability of intellectual property–specifically copyright–to interfere with free speech rights. I’ve touched on this before in the context of conservative critiques of big tech, but it is clear that the monopoly control over an ideal object granted today raises serious First Amendment concerns. Interestingly, this wasn’t always the case for copyright law. Not only were terms shorter during the time of the Founders, but the scope of copyright was significantly narrower. Anything short of wholesale copying (translations included) wasn’t considered to be copyright infringement.
Some maintain that this argument cannot be true, as the economic incentives created by copyright promote free speech by guaranteeing a sufficient return on the upfront costs of creation. Leaving aside the incentives and motivations to create and innovate that exist independent of the promise of exclusivity, this misses the point entirely. The use of someone’s work to either criticize it or advance a separate point is ubiquitous in speech. The ability of a rights holder to cry foul and claim copyright infringement gives them the authority to use the power of the state via the courts to stop speech. Rights holders can (and do) claim copyright infringement for any number of reasons, but it cannot be denied that both in theory and in practice copyright law is used to embargo speech on its way to the marketplace of ideas.
Furthermore, it would be ridiculous to say that confiscating a large plot of land owned by one person and then dividing it up into smaller plots which are then given to multiple people isn’t a violation of private property rights. It expands participation in the institution, to be sure, but that doesn’t mean that the large landowner’s property rights were not violated. “[T]he Framers intended copyright to be an engine of free expression,” wrote the Supreme Court in the 1985 Harper & Row decision, but considering how much copyright law has changed from the time of the Framers, this model has become significantly more complicated. Simply because a set of policies is an engine of free expression doesn’t mean that engine isn’t driving over other forms of free expression.
Under current jurisprudence, this tension is recognized. Provisions of the law like fair use or the prohibition on the protection of ideas are “built-in First Amendment accommodations,” to use the words of the late Justice Ginsberg in Eldred v. Ashcroft, which square the circle. Ginsberg was one of the more hawkish members of the Court with respect to copyright, but even she was quite clear that copyright’s “limited monopolies” could run afoul of the First Amendment, even if it “bears less heavily when speakers assert the right to make other people’s speeches.”
To sum up, although the Constitution does authorize Congress to enact patents and copyright laws, it does not thereby create a constitutional right to patents and copyrights. That said, once patents and copyrights are granted under appropriate statute, the holders do have certain statutory rights against retrospective changes in terms. Meanwhile, though, the authority of Congress to create statutory rights under patent and copyright laws is constrained by the rest of the Constitution. Actual constitutional rights to private property and free speech can sometimes collide with the provisions of patent and copyright law. And when that happens, the statutory rights to intellectual property have to yield.