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Randolph May & Seth Cooper: Copyright's Constitutional History and Its Meaning for Today
Michael Ramsey

Randolph J. May (The Free State Foundation) and Seth L. Cooper (The Free State Foundation) have posted Literary Property: Copyright's Constitutional History and Its Meaning for Today (Perspectives from FSF Scholars, Vol. 8, No. 19, July 2013) on SSRN.  Here is the abstract:

This is the third in a series of papers exploring foundational principles of intellectual property. The efforts of Noah Webster – "The Father of Copyright" – and James Madison – "The Father of the Constitution" – are important to understanding the constitutional foundation of copyright, even though these efforts are little known by some. Separately and jointly, these two prominent figures in early American history called attention to the need for copyright protection in our newly independent nation. And, through their efforts, they played a leading role in successfully obtaining protection for copyright in several states, and, ultimately, in the U.S. Constitution.

As this paper demonstrates, recalling this oft-overlooked historical alliance between the Father of Copyright and the Father of the Constitution sheds light on the nature and meaning of copyright in our nation's fundamental law. Significantly, as the paper shows, Webster and Madison both advanced a public understanding of copyright as a form of "literary property," grounded in a person's basic right to the fruits of his or her own labor. This understanding and grounding should inform our reading of the U.S. Constitution's copyright provision and should continue to guide copyright policy today.

Note: a prior article in this series from May & Cooper is noted here.