The Constitution’s Article I, Section 8 Intellectual Property Clause grants to Congress the 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.” A background assumption of the American Founders was that copyrights and patent rights secured by the Constitution were property rights ultimately rooted in the natural rights of authors and inventors to the fruits of their labors. This proposition, which remains as relevant in today's Digital Age as it was at the time of the Constitution’s adoption, was at the core of our book, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (2015).
The binding nature of public contracts is also part of the conceptual background of the copyrights and patent rights secured by the Constitution. In our April 19, 2016 Perspectives from FSF Scholars paper “The Public Contract Basis of Intellectual Property Rights,” Randolph May and Seth Cooper explore the conceptual and historical understanding of how copyrights and patent rights and are secured by contract between the federal government, on the one hand, and inventors and creative artists, on the other.
The binding obligations of public contracts figured prominently in the constitutional jurisprudence of Chief Justice John Marshall. Much overlooked, however, is Marshall’s articulation of the public contract basis of intellectual property (IP) rights secured by the Constitution. In Grant v. Raymond (1832) described patent grants as public contracts:
It is the reward stipulated for the advantages derived by the public for the exertions of the individual, and is intended as a stimulus to those exertions. The laws which are passed to give effect to this purpose ought, we think, to be construed in the spirit in which they have been made; and to execute the contract fairly on the part of the United States, where the full benefit has been actually received.
Over the ensuing decades, the public contract basis of both copyrights and patent rights was reaffirmed by a number of jurists and legal treatise writers.
As we explain in our paper, principles of contract – reflected in both the social compact theory and in public contracts – form a continuous link between natural rights and intellectual property protections. The contract basis for IP rights, as an embodiment of natural rights principles, reinforces the just claims of inventors and creative artists to protections for their vested property interests in the fruits of their labors.
Protection for the exclusive intellectual property rights of inventors and creative artists therefore deserve what Marshall, in Grant v. Raymond, called "the faithful execution of the solemn promise made by the United States." Please read our paper, and perhaps you will agree with us that Marshall’s words are no less true today than in 1832.
Randolph J. May is President of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland. Seth L. Cooper is a Senior Fellow of the Free State Foundation. May and Cooper are the co-authors of The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective, published in 2015.