With Constitution Day and Citizenship Day just around the corner, it is apropos to reflect on the Founding Fathers, the adoption of the United States Constitution (September 17, 1787), and intellectual property rights.
At the time of Constitutional Convention in 1787, most of the thirteen states had copyright laws in effect. The laws varied from state to state; they were not standardized across the country. The adoption of copyright laws by individual states had been provided for in the Articles of Confederation. There were no federal laws pertaining to intellectual property because under the Articles of Confederation, the Continental Congress did not have the power to pass national legislation. During the Constitutional Convention, James Madison and Charles Pinckney submitted separate proposals pertaining to intellectual property rights to be included in the United States Constitution.
Madison proposed that Congress have the power “to secure to literary authors their copyrights for a limited time” and Pinckney proposed Congressional power “to secure to authors exclusive rights for a limited time.” The proposals were referred to the Committee on Detail for discussion which resulted in the Committee’s proposal for the current clause known as the Copyright Clause (or Copyright and Patent Clause). The clause provides Congress the power to issue patents and copyrights:
Congress shall have 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…. Article I, Section 8, Clause 8 of the United States Constitution
Thomas Jefferson, as Secretary of State, was a member of the first Patent Board, along with Henry Knox, Secretary of War, and Edmund Randolph, Attorney General. Jefferson is considered to be the first administrator of the American patent system and the first patent examiner. At the time of the Constitutional Convention, Jefferson was the ambassador to France and could not attend the convention. In 1787, Jefferson was cautious about granting patents and copyrights because he saw them as a form of a monopoly. By 1789, his opinion had softened somewhat and he wrote to James Madison recommending an article be added to the Bill of Rights with term limits on intellectual property rights: “Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding __ years, but for no longer term, and no other purpose…”
Although prolific inventors and writers themselves, Founding Fathers, Benjamin Franklin and Thomas Jefferson never sought patents for any of their work. In his autobiography, Benjamin Franklin wrote, “As we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.”
George Washington was a strong proponent for a patent system. In his first Annual Message to a Joint Session of Congress, he urged Congress to pass legislation on patents and copyrights. A few months later, the Patent Act of 1790 was signed into law on April 10, 1790, followed by the Copyright Act of 1790 signed into law on May 31, 1790. Washington signed the first United States issued patent on July 31, 1790, (U.S. Patent No. 1), granted to Samuel Hopkins for an improvement “in the making of Pot ash and Pearl ash by a new Apparatus and Process.”
It has been over 200 years since the signing of the United States Constitution and the first copyright and patent laws. Although there have been numerous changes in the laws and the patent system, the central concepts remain the same.