One of the wonderful things about the U.S. Constitution is that it gives lawmakers and judges discretion in application of law. Even strict constructionists have to admit that their interpretation of original intent is in fact an interpretation. I mention this to address the varying interpretations of the Progress Clause — the origin of current U.S. copyright law — and how it means different things to different people. I argue that at its core, we have to understand that it both articulated the importance of scientific and cultural progress while at the same time stipulated a specific mechanism for achieving that progress, one already in place in the U.S. states. As a result, the rights of creators must be central to any discussion of copyright.

First, here’s the passage, Article 1, Section 8, Clause 8, with capitalization updated:

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;

Many advocating copyright reform, including some who comment on this blog, focus on the first part of the passage, “To promote the progress of science and useful arts.” They might argue that copyright law in its current form does not in fact promote science or the useful arts; perhaps instead it retards expression, or simply serves to feed fat cats. Or they might argue it is an inefficient system for such promotion, and there are better alternatives.

Regular readers know I tend to focus on the fact that it gives “authors and inventors the exclusive right to their respective writings and discoveries[.]” I like to note that it is the only place in the unamended Constitution that the word “right” occurs.

Now we need to place this clause in context. It appears in Article I, which outlines the power of the U.S. Congress. Remember, the Constitution shifted the U.S. away from the Articles of Confederation, with its very loose and nearly impotent federal presence. This new government would create a stronger federal government, but the understanding was that the new federal government would only have powers expressly granted to it by the Constitution. In this clause, Congress is empowered to, in essence, create a copyright law, and in fact it did so a year after final ratification of the Constitution, in the very first Congress.

In so doing, what Congress really did was “federalize” copyright, for the states already had their own copyright laws, most of which were carried over from colonial times. Copyright was hardly a new concept; what the Founding Fathers did here was transfer authorship of copyright law to Congress.

Could Congress have declined to create copyright laws? Presumably. But the very reason these powers were articulated in Article I was so Congress could act, and the federal government could assume responsibility. It’s a fun exercise to imagine Congress passing on actually acting on this authority, but it is just that, an exercise; it has no bearing in history or intent.

So we have copyright laws shifted in 1790 from states to the federal government. Over the last 219 years terms have been lengthened, new types of works have been covered under copyright, formalities have been reduced, and fair use has been codified. But let’s move back to the language of the Progress Clause for a minute, and look at it not in pieces, as we generally do, but instead as a whole.

As James Madison, the primary author of the Constitution, articulated in the Federalist Papers, the idea of this clause was to in fact promote the growth of an American scientific and literary culture. I think we can all be in agreement on this point. What is interesting about the Progress Clause is that the authors of the Constitution then put forward a specific mechanism for doing that, i.e., the granting for limited times to authors and inventors of an exclusive right to their respective writings and discoveries.

Why is this concept so important? Because it puts creators at the beginning of any copyright discussion. True, the Progress Clause is utilitarian; it views these rights through a prism of benefiting the society at large. It doesn’t say authors and inventors are really cool so let’s reward them. It doesn’t say they have any moral rights to their works, as some European thinkers and societies did and still do. No, creators were kind of an afterthought here, subsidiary to the broader goal of cultural advancement. However, they were the mechanism chosen by the Founding Fathers to meet that cultural advancement.

Imagine this language as an alternative to the Progress Clause:

To promote the progress of science and useful arts, by pursuing whatever means are deemed efficient to this goal;

Had this been the language of the Progress Clause, Congress might have gone in any potential direction, had they chosen to act, and we have already noted that there was in fact every intention to act upon every provision of Article I. How our discussion might be different had this approach been taken?

But all evidence was this was never under consideration. The historical record suggests no debate over this clause, although many other clauses were debated passionately. Our Founding Fathers were not intellectually bashful.

Like it or not, any discussion of copyright begins with creators’ rights. The Founding Fathers specifically called for that particular approach.

Do you feel future business models should take a “freemium” approach with 95% of us enjoying free creative works, with a generous 5% funding the model through purchase of add-ons? Okay, then persuade copyright owners of the wisdom of this approach.

Do you feel creative works should be part of collective licensing regimes, so they can be acquired and repurposed without the headache of obtaining permission of rightsholders? Okay, then persuade copyright owners of the wisdom of this approach.

So often the debate over copyright begins with the frustrations of an individual user of creative works, who wants easier access, more abilities to repurpose, fewer restrictions on use. These are all important issues that rightsholders must address, because one must always respond to consumer wants and needs in a free market.

But when we talk about our desire to change the status quo on copyright, we must recognize that copyright at its core involves the holding of rights by creators and their assigned partners. The very works we are discussing from a standpoint of acquisition, use and repurposing have entered our culture because someone or a group of someones created the works. Our legal system is built on the notion that those works were created because rights were assigned to them over those works.

With this reality, there can be two lines of discussion on copyright, assuming we all agree that the promotion of progress in science and arts is important. The first line of discussion is whether it is time to abandon the specific policy approach articulated by Congress — the assignment of exclusive rights — and find a new way to promote creativity (such as patronage by the government or wealthy individuals, etc.). The second line of discussion is to acknowledge that we are working with a system in which the default is creators’ rights (with the only Constitutional restriction imposed being “limited times”) and recognize that any changes by definition reduce those exclusive rights of creators. Even if you think creators as a group or individually ultimately will benefit from these proposed changes (collective licensing, etc.) we must be honest and admit they involve a reduction in creators’ rights.

There is so much confusion in this copyright debate. I hope that those who call for reform would articulate which of these two lines of discussion they wish to pursue. Do you call for abolition of creators’ rights? Some do, and they are entitled to that opinion. I think the vast majority, however, are in the later camp, one not wishing to throw out the assignment of creators’ rights entirely but rather expand access, use and repurposing of creative works by those who enjoy them. That is an area ripe with possible discussion points, but it will be helpful if those individuals will acknowledge that their challenge is in persuading creators it is in their best interest to see their rights eroded.

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This entry was posted on Monday, August 17th, 2009 at 11:39 am by Patrick Ross and is filed under copyright law, copyright opponents, creators, culture, fair use, founding fathers, market forces. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.