How did America’s revolutionary generation imagine what we now call “intellectual property”? My last post gave the background for one answer: they inherited a tradition in which art and ideas were thought of as res communes, common things.
A second answer may be less obvious now but it was deeply influential at the time our Constitution was written. To the framers of that document, copyright and patent were not property rights, they were monopoly privileges.
Some background will help explain this:
In the seventeeth-century, British Puritans had begun their struggle against royal power over the issue of trade monopolies. As Lord Macaulay explained in his History of England, Puritans in the House of Commons long felt that Queen Elizabeth had encroached upon the House’s authority to manage trade having, in particular, taken it “upon herself to grant patents of monopoly by scores.” Macaulay lists iron, coal, oil, vinegar, saltpetre, lead, starch, yarn, skins, leather, and glass, saying that these “could be bought only at exorbitant prices.”
Macaulay doesn’t list printing in his History, but it was the case that in the late sixteenth century the Queen’s printer, Christopher Barker, held monopoly rights to the Bible, the Book of Common Prayer, and all statutes, proclamations, and other official documents. And Macaulay does mention monopoly in a famous 1841 Parliamentary speech in opposition to a proposed extension to the term of copyright. “Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly,” he declared, asking rhetorically if the Parliament wished to reinstate “the East India Company’s monopoly of tea, or … Lord Essex’s monopoly of sweet wines?”
The understanding of copyright as monopoly was not Macaulay’s invention; it was almost as old as copyright itself. In 1694 John Locke — a strong supporter of property rights in other respects — had objected to copyrights given by government license as a form of monopoly “injurious to learning.” Locke was partly concerned with religious liberty, the laws in question having been written to suppress books “offensive” to the Church of England, but mostly he was distressed that works by classic authors were not readily available to the public in well-made, cheap editions.
“It is very absurd and ridiculous,” he wrote to a friend in Parliament, “that any one now living should pretend to have a propriety in … writings of authors who lived before printing was known or used in Europe.” As with Macaulay, Locke’s framing issue was monopoly privilege, not property rights.
To come back to Macaulay’s story of the initial resistance to monopoly, Queen Elizabeth had capitulated when the Puritan’s confronted her over this issue, but concession seems not to have survived her death for within two decades the Parliament felt called upon to pass a law directly forbidding “all monopolies.”
This 1624 Statute of Monopolies also made one overt exception to its general prohibition: it allowed patents “of fourteen years or under” to be granted “to the first and true inventor” of “any manner of new manufacture.” Such was the first British patent law and its context makes two things clear: first, patents like copyrights were understood to be a species of monopoly; second, in allowing them Parliament was granting a privilege, not recognizing a right.
This distinction was central to debates over intellectual property for many years. One side argued that the history of the common law showed that authors and inventors had a natural right to their work, and that like other such rights it should exist in perpetuity; the other side replied that the common law contained no such record, that copyrights and patents were merely privileges and that such privileges come from statutes rather than nature, and that they could and should be limited in term.
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Lewis Hyde teaches creative writing at Kenyon College. He is at work on a book on “cultural commons.”