Why in­tel­lec­tual prop­erty rights mat­ter

The Founders be­lieved own­er­ship of one’s la­bor is a nat­u­ral right

The Washington Times Weekly - - Commentary - By Ran­dolph J. May and Seth L. Cooper

The dig­i­tal revo­lu­tion has spawned new plat­forms for au­thors, artists, in­ven­tors and other cre­ators. Global dig­i­tal dis­tri­bu­tion of works and prod­ucts grounded in in­tel­lec­tual prop­erty (IP) rights now oc­curs vir­tu­ally in­stan­ta­neously and more eco­nom­i­cally than ever be­fore. At the same time, the In­ter­net age has prompted a per­cep­tion that in­tel­lec­tual prop­erty online is less de­serv­ing of pro­tec­tion than in­tel­lec­tual prop­erty in tan­gi­ble goods. This skewed per­cep­tion harms the Amer­i­can econ­omy and un­der­mines re­spect for rights pro­tected by our Con­sti­tu­tion.

For all its enor­mous so­cial and eco­nomic ben­e­fits to in­di­vid­u­als and so­ci­ety, the In­ter­net has its dark sides. One dark side is the theft of in­tel­lec­tual prop­erty. Eco­nomic losses from IP theft — prin­ci­pally theft of prop­erty sub­ject to copy­right — run into bil­lions of dol­lars per year.

Crim­i­nals per­pe­trate much piracy of in­tel­lec­tual prop­erty online. Given a chance, such crooks will steal prop­erty no mat­ter what the form. Nev­er­the­less, a sub­stan­tial amount of online piracy is at­trib­ut­able to the con­tem­po­rary “down­grad­ing” of IP rights by oth­er­wise law-abid­ing peo­ple. With so much in­for­ma­tion so read­ily avail­able on the In­ter­net and so easily copied, dis­trib­uted, re­copied and re­dis­tributed, ad in­fini­tum, many sup­pose online con­tent is there for the tak­ing. As the oftre­peated mantra has it, “in­for­ma­tion wants to be free.”

Dig­i­tal-age dilet­tantes find that mantra ap­peal­ing. For them, it is but a short step to ac­cept­ing the no­tion that theft of in­tel­lec­tual prop­erty online is not theft at all. Un­like theft of tan­gi­ble prop­erty, say a book or boxed set of CDs con­tain­ing Frank Si­na­tra’s great­est hits, online theft of those same works in dig­i­tal form is no big deal.

But it is a big deal. The view that in­tel­lec­tual prop­erty rights are less de­serv­ing of online pro­tec­tion than other rights se­cured by the Con­sti­tu­tion den­i­grates IP rights. It also den­i­grates ba­sic prin­ci­ples of Amer­i­can con­sti­tu­tion­al­ism.

Ar­ti­cle I, Sec­tion 8, Clause 8 of the Con­sti­tu­tion — the In­tel­lec­tual Prop­erty Clause — grants 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.” The IP Clause makes copy­rights and patent rights unique ar­eas in which the fed­eral gov­ern­ment is ex­pressly charged with pro­tect­ing pri­vate prop­erty rights.

The first Congress took up the Con­sti­tu­tion’s charge to pro­tect in­tel­lec­tual prop­erty rights by adopt­ing the first copy­right and patent acts, which Pres­i­dent Ge­orge Washington signed into law. Be­cause so many of mem­bers of the first Congress served at the Con­sti­tu­tional Con­ven­tion of 1787 or at state rat­i­fy­ing con­ven­tions, it is of­ten called the “Con­sti­tu­tional Congress.” The Con­sti­tu­tional Congress’ in­clu­sion of IP rights pro­tec­tions in its his­toric leg­isla­tive agenda re­in­forces the Founders’ re­gard for in­tel­lec­tual prop­erty.

This should not sur­prise any­one fa­mil­iar with our na­tion’s con­sti­tu­tional foun­da­tions. The think­ing of the Con­sti­tu­tion’s framers bore the im­print of clas­si­cal lib­eral phi­los­o­phy. And it is an ax­iom of clas­sic lib­eral phi­los­o­phy that each per­son has a nat­u­ral right to the fruits of his or her own la­bor. “Prop­erty” own­er­ship is rooted in a per­son’s la­bor. And a cen­tral aim of gov­ern­ment is to pro­tect what be­longs to each per­son.

James Madi­son’s 1792 Na­tional Gazette es­say, “On Prop­erty,” is in­struc­tive. The “Fa­ther of the Con­sti­tu­tion” drew di­rectly from in­flu­en­tial 17th cen­tury philoso­pher John Locke. Madi­son of­fered a broad def­i­ni­tion of prop­erty, which “in its larger and juster mean­ing … em­braces ev­ery thing to which a man may at­tach a value and have a right.” As Madi­son ex­plained, “a man has prop­erty in his opin­ions and the free com­mu­ni­ca­tion of them,” and that which his own la­bor, “by the sweat of his brow,” has cre­ated. And fol­low­ing Locke, Madi­son con­cluded, “gov­ern­ment is in­sti­tuted to pro­tect prop­erty of ev­ery sort.”

Madi­son’s “On Prop­erty” es­say ex­plains why the Founders’ con­cern with pro­tect­ing prop­erty rights was not lim­ited to tan­gi­ble prop­erty. By in­clud­ing the IP Clause in the Con­sti­tu­tion, the Founders ap­plied to in­tel­lec­tual prop­erty the idea that a per­son has a nat­u­ral right to en­joy the fruits of his of her la­bor. Thus, the Con­sti­tu­tion af­fir­ma­tively se­cures the prop­erty rights of “Au­thors and In­ven­tors” in their works.

The “in­for­ma­tion wants to be free” mantra may have su­per­fi­cial ap­peal. It cer­tainly does to those who pre­fer not to pay for copy­righted or patented works or in­ven­tions. But theft of in­tel­lec­tual prop­erty — online or oth­er­wise — con­sti­tutes theft just as much as en­ter­ing another per­son’s home and steal­ing a hand­ful of books.

Down­grad­ing in­tel­lec­tual prop­erty means dis­re­gard­ing a fun­da­men­tal right. Our Founders con­sid­ered copy­rights and patents im­por­tant enough to in­clude in the Con­sti­tu­tion. Re­call­ing the Founders’ think­ing should lead us to up­grade our re­spect for IP rights and our com­mit­ment to pro­tect­ing them. Ran­dolph J. May is pres­i­dent of the Free State Foun­da­tion, where Seth L. Cooper is a se­nior fel­low. They are co-au­thors of “The Con­sti­tu­tional Foun­da­tions of In­tel­lec­tual Prop­erty — A Nat­u­ral Rights Per­spec­tive” (Carolina Aca­demic Press, 2015).


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