Like I said (see “Republicans Going Copyleft”), things are getting pretty interesting now that the political “right” has discovered that there might be some mileage to be gained by seizing the initiative on copyright reform, an issue (a) that is appealing to young voters, and one that (b) the Democrats, dependent on Hollywood dough, have ceded.
The backlash/debate has begun in earnest: a new paper, published by the Center for Individual Freedom, by 3 authors with impeccable conservative credentials (including former Solicitor General [under the 2d Bush] Paul Clement and former Ass’t A.G. [also under Bush II] Viet Dinh), on “The Constitutional and Historical Foundations of Copyright Protection.” The paper makes the argument that “from its inception copyright was seen not merely as a matter of legislative grace designed to incentivize productive activity, but as a broader recognition of individuals’ inherent property right in the fruits of their own labor” — that, in other words, copyright protection was justified not merely on utilitarian grounds — as a means to increase the supply of creative works by giving authors and inventors a property right in their creations — but as a natural right, akin to the right to free expression and the right to due process of law.
As a historical matter, I think they’re dead wrong. There’s an immense literature on this subject, and considerable debate on the question, impossible to summarize here. [If you’re interested, here’s a good place to start]. But my reading of the historical record is quite the opposite: that the consensus among the framing generation was that authors had no natural right to their creations, and that copyright (and patents) were, as Jefferson put it, “the gift of social law.” [It’s why, incidentally, Jefferson altered George Mason’s 1776 Virginia Declaration of Rights, which had declared that the “inherent rights” possessed by all included “the enjoyment of life and liberty, with the means of acquiring and possessing property . . .” when it came time to draft the Declaration of Independence.]
I also think they’re wrong, on the merits: I don’t believe in a “natural right” to the productions of the human mind. I think Jefferson had it right. In his justly-celebrated 1813 letter to Isaac Macpherson on the question of whether “inventors have a natural and exclusive right to their inventions,” he noted that “those who have seriously considered the subject” agree that there is no natural right real property (“a separate property in an acre of land, for instance”); it would therefore be “curious” to hold that “an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.”
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.
That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.
Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
Does it matter? You bet it matters. The utilitarian/Jeffersonian case for our current copyright law — for giving a century’s worth of protection to every email you write, every drawing your 8 year old daughter puts onto paper, every photograph you take, every rendition of “Angel from Montgomery” sung at open mics across the land … — is simply impossible to make. A genuinely utilitarian/Jeffersonian copyright law, one that looked only to the need to provide the proper incentives for the creation of new works, would look very different — much, much smaller and limited in scope — from the copyright law we now have. If, however, you believe that authors truly have a right to control their creative productions, then you’re much less likely to do the kind of scaling-back that the Jeffersonians are clamoring for.