Article I, Section 8, Clause 8: Copyright

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 Copyright Clause was apparently uncontroversial at the Constitutional Convention.  The notion of copyright already existed in British statutory law, and the concept of patents may date back millenia.

The most significant controversies over copyright have been over the length of copyright and over who constituties an author for purposes of copyright. The clause requires that a copyright be for a limited term, but Congress has repeatedly retroactively extended the term of existing copyrights, and SCOTUS has upheld the extensions. At present, the term of copyright is the lifetime of the author plus 70 years, except for corporate copyright, which is for 120 years. It is our opinion that this is already too long, and any further extension would make a mockery of the requirement that copyright be for a limited term.

The explicit recognition of a term of 120 years for corporate copyright establishes that “Authors” need not be individual persons, but can be bodies of persons who collaborated to create the copyrighted works. This seems unobjectionable per se. The courts have so far held that only human persons or corporations of human persons can be authors for purposes of copyright law. Works of “art” by animals or generated by a computer are not copyrightable, at least not by the animal or computer.

Patents protect rights for a much shorter period of time. The justification for this is that there is strong social benefit to continuing improvements in technology, and too long a term of patent protection hinders further innovation based on the patented work. The term “patent” itself comes from the requirement of disclosure.  An inventor applying for a patent must provide a complete disclosure of the invention, such that anyone of ordinary skill in the relevant field of technology can duplicate the invention based on the patent disclosure. In return for a government protection of his invention for a limited period of time, the inventor must open the door to others to improve on his work. The invention being patented must also be novel and non-obvious.  The latter is judged by whether a person of ordinary skill in the relevant field would consider the invention obvious. Much patent litigation therefore revolves around the questions of whether an invention is actually novel and non-obvious.

Intellectual property is itself theoretically subtle and non-obvious. In classical liberalism, it is not the place of government to provide private goods. These are goods which are both rivalrous and excludable. If one person’s use of a good prevents another person from using it (rivalrous) and it is possible to prevent anyone from using the good (excludable), the good is a private good that should be provided by the private market. Only one person can drink a particular glass of milk, and the milk can be physically secured to prevent anyone from drinking it. Thus milk is a private good. By contrast, public goods are non-rivalrous and non-excludable. The use of the good by one person does not prevent its use by another, and there is no practical way to prevent someone from using the good. Scientific knowledge is a prime example of such a good; once known, anyone can exploit a scientific law.

Both copyrighted works and patented inventions have much of the character of public goods. Once a written work is on the market, a different publisher could conceivably begin printing and selling its own copies of the work. Doing so does not hinder the original publisher from continuing to print the work, though it may ruin his market. It is also not possible (by private means) to exclude a second publisher from printing the work once it is on the market. This is particularly true of modern electronic works, such as software, where the cost of making a copy is trivial. It is less true of printed books, where the book itself is clearly a private good. (Generally, only one person at a time can read a particularly copy of a paper-and-ink book, and he can certainly keep his copy to himself. It is the writing printed in the book that is not a typical private good.) Copyright artificially makes the writing itself, as distinct from the medium that carries it, a rivalrous and excludable good. This allows the private market to  reward good authors and inventors, through the paradoxical mechanism of a significant market intervention.