Tom W. Bell, a professor at Chapman University’s Fowler School of Law and an adjunct fellow of the Cato Institute, has a new book out from the Mercatus Center, Intellectual Privilege: Copyright, Common Law, and the Common Good. As its title suggests, Bell argues in favor of viewing copyright as a privilege rather than as property or as a right. At the same time, Bell argues that copyright has diverged from what the Constitutional Framers intended and should be reconfigured to address this divergence.
How accurate is this framing? One particularly compelling piece of evidence comes prior to the drafting and ratification of the Constitution, which created a federal legislature with the power, among others, 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.” The Continental Congress appointed a committee “to consider the most proper means of cherishing genius and useful arts through the United States by securing to authors or publishers of new books their property in such works” on March 10th, 1783. This committee consisted of North Carolina representative Hugh Williamson, South Carolina representative Ralph Izard, and Viriginia representative James Madison, who would be the primary architect of the Constitution’s Copyright Clause.
On May 2, the men presented the following to the Congress:
The committee, consisting of Mr. Williamson, Mr. Izard and Mr. Madison, to whom were referred sundry papers and memorials from different persons on the subject of literary property, being persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of arts and commerce, beg leave to submit the following report:
Resolved, That it be recommended to the several states, to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their heir or assigns executors, administrators and assigns, the copyright of such books for a certain time, not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their heirs or assigns executors, administrators and assigns, the copyright of such books for another term of time not less than fourteen years, such copy or exclusive right of printing, publishing and vending the same, to be secured to the original authors, or publishers, or their assigns their executors, administrators and assigns, by such laws and under restrictions as to the several states may seem proper.
If you take a look at the original report, you’ll notice something interesting. The committee had originally referred, in the last sentence, to the exclusive privilege of printing, but crossed out privilege and substituted right.
It’s a fascinating historical tidbit, and one that suggests the case that the Framers considered copyright to be some sort of government privilege is not as strong as Bell claims.