On Annemarie Bridy’s Freedom-to-Tinker post Copyrights, Fundamental Rights, and the Constitution a commenter by the name of Mike Lippert seems to think I am claiming that copyright is a natural right.
“Copyrights (and patents) seem clearly legal rights created and enforced by government, not natural rights”
It’s good that you, me, and the judiciary recognise and accept that copyright (viz Statute of Anne 1709/1790 onwards) is a privilege created/granted by the state, to be enforced/prosecuted by the holder (albeit relatively recently augmented by state assistance thanks to concerted lobbying), at the holder’s pleasure.
The Constitution empowers Congress to secure the author’s (already existing/natural) exclusive right to their writings. It does not empower Congress to grant a privilege.
If the author already has a right, it’s a right they’re born with – not a ‘legally created right’ granted to them, or one they purchased/inherited/received from another author.
I have not actually equated common law rights with natural rights. However, it would be interesting to enumerate those common law rights that can be distinguished from natural rights, and to analyse precisely how common law is not simply an evolving codification of natural law. But, I digress.
By “aka natural right”, I suggested that Madison, in saying that copyright had been solemnly adjudged to be a common law right, intended his audience to understand that copyright was a natural right (inherent/innate to the author) that, by the proposed clause, Congress should therefore be empowered to secure.
If it wasn’t a common law right, and just another state granted privilege (such as a monopoly or Letters of Marque), then Congress would have to be empowered to grant it – not just empowered to secure a pre-existing right.
Remember, that while copyright/SoA was not unfamiliar to The Framers (or various states’ legislatures), the Constitution could not admit the existence of privileges already granted – in the new or old world. This is why Madison had to suggest that copyright wasn’t a privilege – in order that when he legislated the Statute of Anne as the 1790 US copyright act, people had already been primed to recognise this as law that ‘secures a common law right’ (though it is of course nothing of the sort, but the granting of a monopoly for the benefit of press & state).
The point is, the clause doesn’t actually empower the granting of copyright or patent, despite enabling Madison’s subsequent granting of those monopolies to proceed with little or no protest. We thus have the granting of the monopolies we call copyright and patent as a fait accompli, and today monopoly-loving lawyers bend over backwards to convince everyone that Congress, of course, had the power to grant these monopolies.
It’s all rather academic really. As Annemarie observes, the power of Congress is no longer limited by The Constitution, or at least, by strict readings of it.
James ‘Dr Frankenstein’ Madison chose to unleash Queen Anne’s ‘creatures of statute’ upon the American people, and now they roam the entire planet like Monsters from the Id.
The phrase “to secure the author’s (already existing/natural) exclusive right to their writings” isn’t just a very particular case of “to secure the owner’s (already existing/natural) exclusive right to their belongings”?
Reading that phrase, it’s easy to get confused by the wording (and years of indoctrination) and assume that the “exclusive right to their writings” means something else, like a supernatural power to control what others can do with the copies of his writings.
It says nothing about what others can do with their copies of an author’s writings, which brings me back to the generalization of that particular phrase: “to secure the author’s/owner’s exclusive right to their writings/belongings”.
The issue on that phrase seems to boils down to a misunderstanding of what copyright supporters and freedom supporters interpret as “exclusive rights”.
Yes Julián, the author clearly has a natural (common law) right to exclude others from their writings.
Per Wheaton v Peters
while the common law undoubtedly protected the right to one’s unpublished writings — e.g. a diary, personal letters
This is why Madison primed his audience to understand the clause as empowering Congress to secure a natural right (by saying that copyright had been adjudged as a common law right), because securing the individual’s (natural) rights was the whole point of instituting a government in the first place.
That to secure these rights, Governments are instituted among Men
So, per the Constitution, Congress has power to secure the author’s exclusive right to their writings, and on the same basis, the inventor’s exclusive right to their designs, but not to grant transferable reproduction/manufacturing monopolies (for immortal corporations to consequently amass into an arsenal). Copyright (nor patent) does not secure a natural (aka common law) right, despite Madison saying copyright (& patent) had been adjudged to be a common law right.
Today, copyright is described as an ‘exclusive right’ precisely in order to hoodwink people into believing it to be the right that the Constitution empowered Congress to secure. But of course, the Constitution cannot empower Congress to secure a right that doesn’t already exist – only to secure one that does, or to grant a privilege (which would have been rejected by other Framers as antithetical).
Thus you will see lawyers carefully seguing from author’s exclusive right to copyright without actually declaring them to be the same thing. You can see Annemarie making statements about ‘Exclusive rights’ (in the sense of legislatively created ‘rights’) and then statements about ‘copyright’, but she didn’t actually say a) that copyright was the exclusive right the Constitution empowered Congress to secure, nor b) that copyright secured an author’s exclusive right to their writings.
It is amazing how many people think the progress clause clearly empowered Congress to grant/create copyright, even though, from Madison’s own explanation, the clause is intended only to empower Congress to secure an author’s common law right – because Madison knew that’s all the power he/Congress would need to legislate copyright/patent – because he’d already primed the other Framers with the understanding that copyright and patent were common law rights.
As Madison explains in Federalist #43
The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.
Hence Congress can secure common law rights – not grant monopolies – even though Madison knew copyright and patent weren’t common law rights and were obviously grants of monopoly.
While Madison may insinuate monopolies are common law rights to Framers en masse, when it comes to discussions with a conspirator, Jefferson, he reveals he knows precisely what he’s talking about, i.e. monopolies, and that they are privileges to be granted:
With regard to monopolies they are justly classed among the greatest nusances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the Public to abolish the privilege at a price to be specified in the grant of it?
Corruption from the start, that even Madison acknowledged, that thanks to his weakness, we enjoy today – cultural and technological gridlock.