In Honor of Constitution Day: Article 1, Section 8, Clause 8 and the Pursuit of Happiness

by Neil Turkewitz

Today as we recall and honor the Constitution of the United States, it seems appropriate to reflect on the clause that fuels the Arts and therefore, in some respects, is most directly associated with the pursuit of happiness. I speak, of course, about Article 1, Section 8, Clause 8: “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.”

Much ink has been spilled concerning the Constitutional underpinnings of intellectual property, but to understand its history and meaning, the most obvious statement from the original source, James Madison, who wrote: “The public good coincides…with the claims of individuals.”

This is nicely explored in this article by the ever-thoughtful Terry Hart. And for a deeper dive in Constitutional history, see this.

Bill Patry also has a very nice contribution on this critical subject. Bill, a person who I am fortunate enough to call both colleague and friend, has had a long and distinguished career in the public and private sector, including stints at the House Judiciary Committee and the Copyright Office, and is the author of a treatise on U.S. copyright law entitled Patry on Copyright. Patry is currently Senior Copyright Counsel at Google.

[quoting Madison in the Federalist Papers] The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

Patry then astutely observes:

At least four important principles may be gleaned from this short statement. First, copyright was a right recognized as common law. Second, the effectiveness of granting exclusive rights to authors as an incentive to creation was well acknowledged. Third, copyright must be federal in order to achieve, in practice, effectiveness of the grant. Fourth, the public interest fully coincides with the interest of authors having exclusive rights in their works. The source of this harmony between public and private interests is not difficult to discern once we strip away our present-day, consumer-oriented perspective: in place of government control, the Founding Fathers believed private property, including intellectual property, was the best way to ensure the triumph of democracy over the tyranny of the aristocracy. As former Register of Copyrights Abraham Kaminstein observed:

The basic purpose of copyright is the public interest, to make sure that the wellsprings of creation do not dry up through lack of incentive, and to provide an alternative to the evils of an authorship dependent upon private or public patronage. As the founders of this country were wise enough to see, the most important elements of any civilization include its inde’pendent creators — its authors, composers and artists — who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright is the only assurance we have that this creative activity will continue.

In this polarizing era where facts and nuance are less and less common, it is more important than ever that we celebrate the things that unite us, and that we search for common ground and understanding where it is lacking. Lost in talk of “copyright wars” and an over-simplified copyright versus tech narrative, is the fact that there is a great deal of common interest and agreement. Indeed, the age of information would be arid (and uninformative) in the absence of either information or modes for distributing and accessing it. Tech and content need each other, are part of each other, and in fact bleed into one another. While there are certainly some outliers and differences related to theories of utilitarianism versus natural rights, at core there is broad agreement on the foundational issues and purposes of copyright law, including the need for a copyright regime that ensures support for working creators and promotes innovation. Most tech companies would agree that copyright protection serves the public interest, and that copyright systems should foster new forms of expression. The creative sector for its part supports the idea that the establishment of modern, robust and effective protection should include appropriate limitations or exceptions to rights, consistent with international treaties and the needs of different cultures (both legal and creative).

Of course, finding appropriate balance in an ever-changing technological universe is, and will be, a constant and evolving challenge, and easy answers will elude us. This is hardly new to copyright or law in general. But engagement in thoughtful and nuanced discussion must not be just one of several options. It should be a requirement.

Copyright protection gives effect to the constitutional goal of promoting the progress of “science” (in the Age of Enlightenment meaning of knowledge) by recognizing and vesting rights in authors. Consistent with this, the Supreme Court held, in its Harper & Row Publishers v. Nation Enterprises (1985) opinion (repeated later in Eldred), that “the Framers intended copyright itself to be the engine of free expression,” based on their understanding that “copyright is intended to increase and not to impede the harvest of knowledge…. The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.”

Let’s use this opportunity of celebrating the Constitution to cast off the divisive rhetoric, and to celebrate the arts. The arts not only give meaning to life, but fuel the economy. All parties have an interest in sustaining the ability of creators to earn a living from their craft. This is too frequently overlooked in the fight over words and symbols. Our laws should be a constructive tool to encourage creativity, and ensure that artists are able to have the economic stability and flexibility to create. Let’s work together to help all artists, that way we all win. The labels employed to accomplish that are of little relevance; what does matter is that we do it.

Developments in technology have created the potential for a global Renaissance in cultural production and an explosion in the practical ability to engage in fundamental freedoms. But to realize this potential, we need equal parts passion and reason. We must recognize that human dignity and the advancement of societies require forbearance and fairness, the ability to listen as well as the ability to talk. An understanding of our interconnectedness, and an approach to problem solving built on embracing complexity with humility, and the rejection of over-simplified and false dichotomies.