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.

Motion of Hugh Williamson

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.

Report

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.

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15 Comments

  1. They certainly had “considered” it, as you say, as demonstrated by the fact that they changed their minds and scored out the word “privilege”. That shows, in itself, that they at least considered it.

    But that doesn’t matter. The fact that the framers agreed with copyright philosophy is not in itself an argument to support copyright philosophy. There were other unjust clauses in the constitution at the time that I don’t need to mention. I would be pointing this out even if I personally agreed with copyright, as a matter of rational principle. Both sides need to stop bickering over pointless arguments from authority that constitute “they said it” and “no they didn’t!”.

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    • Well, originally it said “such copy right or exclusive privilege liberty of printing,” which was then changed to “such copy or exclusive right of printing.” So in both versions, it is recognized as a right and not merely a privilege or liberty. I think this was simply cribbed from the Statute of Anne’s provision that an author “shall have the sole right and liberty of printing.” It’s both a right and a privilege. The right is what lets the author exclude others from copying his work, and the privilege is what lets the author copy his own work.

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    • The technology of copying was vastly different back then. Copyright was only really a law that regulated your behavior if you happened to own a printing press. If you owned a printing press, it usually meant that you owned a printing company. Ergo copyright violation was only possible for those doing a specific business activity, that is the business of printing.

      This is a far cry from today where literally single mothers and college students are being dragged into court over copyright infractions. The possibility to violate copyright now spans the entire spectrum of humanity and their ordinary activities online.

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      • Well I would go much further than that and say that copyright would have been a futile philosophy even in the days BEFORE the printing presses.

        Of course people would write word for word the recordings of other scribes under the radar – even if they had to resort to using mnemonic techniques to remember what was being read aloud so they could copy it later while nobody was looking. Then it would have been a case of traveling miles away and getting away with as much profit as you could, which would not have been hard.

        Charles Dickens, for example, sailed the Atlantic towards the U.S. knowing fine well he could do nothing to stop the pirates during his time. The motive seemed to be to simply proclaim himself as the author of those pirated copies in circulation, which is something you can support even on a legal basis without having to support copyright. Clarification of a true artist is easy. People are far more ready to support THAT. But an economic theory that dooms artists to hopelessly and helplessly chase this wild goose of unpredictable, profitable infringement has been dead from the get go. It is no wonder so many parallels are drawn with the war on drugs. The internet – which can brew utopianism itself – is not really required to demonstrate copyright’s utopian fantasies. Copyright has failed to even get the radio stations of the U.S. to pay musicians. It turns Google and Kim Dotcom into Al-Capone-like prohibitionist tax-dodgers. It has no answer whatsoever about how to stop the Chinese regime’s piracy. And all of those corporate pirates may well indeed secretly SUPPORT copyright because of the artificial scarcity they benefit from – untaxed and unregulated. The system is not in the least bit dependable. Because such as the nature of copyright, it forces the artist into the impossible position of having to claim the entire world as being within the boundaries of his “fence”, and having to watch over all of it. Thieves quite rightly laugh and steal without fear.

        What we need is a radical approach to protecting artists that involves bringing Mohammad to the mountain instead of the other way around. And such radicalism points to assurance contracts: tickets, subscriptions, pre-orders, and currently crowdfunding all give the artist the power to hold his fruits of labour hostage unless everyone pays him the price he asks for. One thing pirates cannot take from the artist is his ABILITY to write. Sometimes property is more than about nouns – it is about verbs. Not just goods, but services. And since the pirates – the Torrenters and Megaupload alike – depend on the existence of the creation to gain their rewards, they will have no choice but to fund them. Mutually Assured Destruction can hold up well on its own, here. And that will show once Google and others start making $1,000,000 pledges to Kickstarter pots, never mind a mainstream, box-office rating crowd.

        What we don’t need is a system of empty promises that encourages artists to invest first, create, then hope that the profits will come afterwards with only costly civil courts to protect them. There’s no real way to put your foot down about your rights in the same way. And you end up shooting down the rights of derivative artists instead – who are entitled just as much to their fruits of labour as original artists.

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        • Sure. Copyright was largely pointless before the printing press, and troubling in a world where everyone owns a printing press. It worked best when it was simply an industrial regulation against the business activities of printers and publishers. I don’t think it was ever the intention of copyright to apply to activities of ordinary people or the population writ large.

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  2. For those interested, the video of Professor Tom Bell’s presentation yesterday at Cato is here: http://cdn.cato.org/archive-2014/cbf-05-07-14.mp4

    Professor Chris Newman’s spirited rebuttal (starting 28 minutes in) is not to be missed!

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  3. The founding fathers also limited copyright to 28 years (actually 14 + optional renewal).

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    • Correct. And in the introduction to his book, Bell suggests “that the United States should return to the kind of copyright the Founders supported: the one they created in their 1790 Copyright Act.” This cracks me up because the 1790 Act contained property talk such as “sole right,” “exclusive right,” “assigns,” and “proprietor.” How anyone can read that Act and think the Founders thought that copyright was only a privilege and not a property right confounds me. I mean, the Constitution literally says “exclusive right.” That’s clearly a reference to the Blackstonian view of property, which the Founders were well-steeped in.

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    • To be accurate, the term of years limitation pertained solely to federal statutory law. Back then federalism was more than just a word on paper as seems to be the case today.

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  4. I recently found an interesting reference to copyright in Boswell’s Life of Johnson. In his entry for May 9 1773, Boswell says that Johnson ‘descanted on the subject of Literary Property. “There seems (said he) to be in authours [sic] a stronger right of property than that by occupancy; a metaphysical right, a right, as it were, of creation, which should by its nature be perpetual; but the consent of nations is against it, and indeed reason and the interests of learning are against it; for were it to be perpetual, no book, however useful, could be universally diffused amongst mankind, should the proprietor take it into his head to restrain its circulation…[Johnson elaborates on this point, but concludes] at the same time the authour is entitled to an adequate reward. This he should have by an exclusive right to his work for a considerable number of years” .’
    We may summarise Johnson’s position as:
    a) the author’s right is a natural ‘metaphysical’ right, not just a creation of laws;
    b) in principal it should be perpetual;
    c) there are however countervailing reasons of public interest for the right not to be perpetual (an issue not yet decided by Donaldson v. Beckett at the time);
    d) but authors are entitled to reward through a substantial duration of copyright.
    Boswell’s Life of Johnson was published in 1791, so it could not have influenced the drafting of the Unites States Constitution, but it may represent a common view at around the relevant time. The idea that the natural rights of authors are actually *stronger* than those of property owners generally is found in many sources, including the copyright statutes of individual States prior to the Constitution.

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    • That’s fantastic! Thanks for sharing.

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    • Real property as a “right” is quite shaky on moral grounds. Obviously if you already own the land, it’s your “right”, but when you don’t, it’s taking it from it’s original occupants (especially if they happen to be browner then you) is simply “manifest destiny”. I think one this and many other reasons the whole idea of property as a right happened to be the one thing Jefferson explicitly erased from Lockean philosophy when he drafted the Declaration of Independence.

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  5. Robert Levine

    >>>Sometimes property is more than about nouns – it is about verbs.
    And sometimes it’s an exclamation. For example: “Huh?”

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  6. What one creates at their own insistence, is their property; period. If they wish to compensate themselves for their efforts they can take their creation, turn it into a product, and then sell, license/rent, loan said product. If someone wants to generate revenue from said product, that activity must be agreed to by the creator as to the terms of compensation and life of the agreement for the reseller. If the reseller generates revenue without permission from and compensation to the creator, that is called … STEALING!!!. Seems simple to me.

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  7. rowena cherry

    Was the world’s first cease and desist notice, “Thou Shalt Not Make Unto Theyself A Graven Image”…?

    Reply

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