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10/20/2013

Randolph May & Seth Cooper: The Constitution's Approach to Copyright
Michael Ramsey

Randolph J. May (The Free State Foundation) and Seth L. Cooper (The Free State Foundation) have posted The Constitution's Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property Rights (Perspectives from FSF Scholars, Vol. 8, No. 20, August 2013) on SSRN.  Here is the abstract: 

This is the fourth in an occasional series of papers exploring foundational principles of intellectual property. Copyright and patent are rooted in an individual's basic right to the fruits of his or her own labor. Intellectual property (IP) protections are extensions of that basic right. Such protections secure to authors and inventors the financial rewards of their creative works and innovations for limited times, thereby promoting the public good.

Despite the property rights grounding of copyright and patent, some have sought, in varying degrees, to undermine the legitimacy of IP rights by suggesting IP rights are illegitimate government-conferred monopolies. A related claim is that IP rights are essentially contrary to the anti-monopolistic outlook of America's Founders. These lines of attack on IP rights are wrong. Government-conferred monopolies over commerce, trade, and occupations are, in fact, almost always anathema to the American constitutional order as well as sound public policy. But basic distinctions set individual IP rights apart from illegitimate government-conferred monopolies. Under a property rights approach to copyright and patent, limited protections are tied to the creation of specific literary works and new inventions. This leaves others like freedom to create and invent, with no geographical or occupational barriers to entry.

At the time of the nation's founding, basic differences between government-conferred monopolies and IP rights were well known. This paper explains why the U.S. Constitution rightfully should be considered to be anti-monopoly and pro-IP rights. Both of these conceptions rightfully coexist in our constitutional order.