Patents and Copyrights
PATENTS AND COPYRIGHTS
Modern concern with the protection of intellectual property of authors originates in seventeenth- and eighteenth-century natural rights and mercantilist discourse. Natural rights philosophers taught that the right of individuals to property was inalienable and that they are entitled to the wealth generated by their mental creations. Mercantilism, which judged the relative strength of nations by their balance of trade, prompted rulers to find ways to encourage creativity and innovation at home as a way of besting international rivals. In theory, English law and practice covered the intellectual property of authors and inventors. In practice, however, no enforcement mechanisms to protect intellectual property existed in the colonies and colonial authorities issued very few patents.
Following the American Revolution (1775–1783), the various states tried to foster independent intellectual property policies in line with these beliefs. Noah Webster (1758–1843), author of the best-selling Grammatical Institute of the English Language (1783), campaigned to make the protection of intellectual property the law of the land. Webster feared that pirated versions of the book would deprive him of profits and lobbied with each state legislature to protect his ownership. He associated his campaign with the patriotic cause of establishing the legitimacy and distinctiveness of American English and enlisted the support of well-respected revolutionaries like Thomas Paine and Joel Barlow to speak out in support of copyright legislation. The copyright movement of the 1780s was triumphant. All states, with the exception of Delaware, passed acts that in principle established their commitment to protecting the intellectual property of authors.
The copyright campaign of the 1780s, however, demonstrated the need for a coherent national policy. Under the Articles of Confederation (1781), Congress could only recommend that the states protect the rights of authors. Whether a policy was enacted or not remained up to the states. Similarly, the right to issue patents to reward a mechanical innovation resided exclusively with the states.
Champions of intellectual property thus backed the constitutional movement of the second half of the 1780s. Many Patriots were alarmed by the unquenchable American consumption of imported British goods, feeling that political independence was undermined by the return of economic dependence on the former colonizer. Establishing a unified and effective manner of rewarding authors and inventors promised to foster American innovation and creativity that would wean the citizens of the Republic from their addiction to English manufactures.
The Constitutional Convention (1787) did not disappoint these backers. On 18 August 1787, James Madison (1757–1836) of Virginia and Charles Pinckney (1757–1824) of South Carolina recommended that the Constitution include a clause rewarding creativity in both literary and practical realms by granting exclusive rights over intellectual creation for a specified period of time. On 5 September 1787, the convention unanimously approved Article I, section 8 of the Constitution that instructed the new government "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries."
The founding fathers thus provided a mechanism by which individual inventors and authors were rewarded for enriching American society with new devices or writings. Inventors and writers were the only occupational groups given special benefits in the U.S. Constitution. The intellectual property provision in the Constitution was the first legal affirmative recognition of the property right embodied in the process that produced innovation. Even anti-Federalists rarely criticized this aspect of the proposed Constitution.
The consensus in favor of the clause suggests widespread cultural acceptance of the measure. No one in particular had to push the delegates to include it in the Constitution. The prevalence of intellectual property clauses in the states' constitutions suggests that most American leaders recognized by the 1780s the need to promote literary and industrial creativity in the new nation. In unifying the patent grants on a national scale, the Constitutional Convention created an apparatus that spared authors and patentees the chore of having secure grants in each of the individual states.
federal intellectual property policy
In his first annual message, in January 1790, President George Washington asked Congress to enact the necessary legislation encouraging "skill and genius" at home and "the introduction of new and useful inventions from abroad." Congress took up the matter and in 1790 passed bills to protect the rights of authors and inventors. The first U.S. Copyright Act followed the British one, granting literary works an initial fourteen-year term of protection, which could then be renewed for another fourteen years for a total of twenty-eight years of protection. Only citizens of the United States enjoyed copyright protection.
The Patent Act of 1790, however, broke new ground. The initial proposal followed the English system, which sought to attract superior European craftspersons to the kingdom. Those who introduced technological innovations hitherto unknown in England were rewarded with production monopolies. Likewise, the initial version passed by the House of Representatives granted introducers of pirated technology the fourteen-year monopoly privileges accorded to original inventors. The Senate, however, amended the bill to grant patent monopolies only to inventors of machines "not before known or used" and deleted the location qualifier of the House version—"within the United States." The first U.S. Patent Act, then, restricted patents exclusively to original inventors and established the principle that prior use anywhere in the world was grounds for invalidating a patent.
The 1790 Act required the formation of a patent board composed of the secretary of state, the secretary of war, and the attorney general and charged it with evaluating the merit of each application. This requirement became too burdensome, particularly for Secretary of State Thomas Jefferson, who was put in charge of the entire project. The sheer volume of applications made the first patent act an administrative nightmare. In 1793 Congress relieved members of the cabinet from examining individual patents and assigned the duty to a clerk in the State Department. A patent became a registration of a claim any persons could make provided they paid the thirty-dollar fee and that no similar claim was previously registered. Acquiring a patent depended exclusively on prompt completion of the necessary bureaucratic paperwork. The revised system maintained the dual demand for novelty and originality by requiring each patentee to take an oath that he or she was indeed the first and original inventor. The disputes likely to arise from this strictly bureaucratic registration were to be resolved by a board of arbitrators and the courts. A revision in 1800 added the requirement of an oath by all applicants to the effect that their "invention, art or discovery hath not … been known or used either in this or any foreign country."
Textual examination of the patent law might give the impression that the young Republic had established a new moral code of intellectual property. The statutory requirement of worldwide originality and novelty, however, did not hinder widespread and officially sanctioned piracy of both technology and literary works. American publishers printed pirated literary works without compensating authors and artisans successfully received patents for devices already in use in Europe. Moreover, the Patent and Copyright Acts explicitly prohibited foreigners from claiming copyright or patent privileges in America for works and innovations they had already patented in Europe. Intellectual property practices in the early Republic favored printers, operators, internal developers, and entrepreneurs at the expense of artists, authors, investors, and inventors.
Bugbee, Bruce W. Genesis of American Patent and Copyright Law. Washington, D.C.: Public Affairs Press, 1967.
Hindle, Brooke. The Pursuit of Science in Revolutionary America. Chapel Hill: University of North Carolina Press, 1956.
Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge, Mass.: Harvard University Press, 1993.
Doron S. Ben-Atar