In my last post I suggested that America’s revolutionary generation approached the issue of intellectual property through their understanding of, and antipathy toward, monopolies. To see that this was in fact the case one need only read the letters that Jefferson and Madison exchanged in the late 1780s, when the Constitution was being framed.
Jefferson was in Paris at that time, and he and Madison regularly wrote to one another about the work being done in Philadelphia. Jefferson’s main complaint about the draft document Madison sent him was that it contained no Bill of Rights, and when enumerating the items such a bill ought to contain he always listed “restrictions against monopolies.”
Furthermore, the granting of patents is the one example he gives of what “monopoly” meant to him. In June of 1788, for example, he wrote Madison saying that while he was well aware that a rule against monopolies would lessen “the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14. years,” nonetheless, “the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.”
Madison replied several months later, disagreeing with Jefferson but using the same conceptual frame to make his point:
“With regard to Monopolies they are justly classed among the greatest nuisances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced…? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great….”
Jefferson himself slowly came to agree with Madison that limited monopoly privileges were useful incentives. But that is not the point for the moment; for the moment the point is that both men saw intellectual property in terms of monopoly privileges, not property rights, and both were concerned to know how “the many” were to be protected from monopoly’s potentially corrupting power.
In the background lay all that I sketched in my last posting — political and religious liberty, the dissemination of knowledge, and so forth — as is clear, for example, from a memorandum on monopolies that Madison wrote many years later in which he declared that “perpetual monopolies of every sort are forbidden … by the genius of free Governments,” and where he expressly made the link to religious liberty.
When we now read that clause in the Constitution that allows the Congress to give patents and copyrights “for limited times,” we are seeing the fruit of the tension here described between a willingness to give “encouragements” and a resistance to monopoly.
The limit on these privileges is meant to prevent perpetual monopolies, but it has a positive goal as well: it is the mechanism by which the Founders hoped to engender a public domain, a commonwealth of ideas and inventions.
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Lewis Hyde teaches creative writing at Kenyon College. He is at work on a book on “cultural commons.”