May 26, 2024

Copyrights, Fundamental Rights, and the Constitution

There was a lot to take issue with in Scott Turow’s recent op-ed in The New York Times. Turow, who is currently President of the Authors Guild, took to The Times to criticize the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, which brought physical books manufactured and sold abroad within the protective scope of copyright’s first sale doctrine. Turow cast the Court’s decision as another blow to authors’ rights, which, by his account, are being pitilessly washed away by the digital tides. He blames the usual suspects: e-books,, pirates, Google, and—this last one may surprise you—libraries. The coup de grace, he asserted, will be the extension of first sale rights to digital copies of books. (It may comfort him to know that the possibility of that happening is more remote following Redigi’s recent defeat in federal district court.)

What bothered me most about Turow’s argument, however, wasn’t its scapegoating of digital technology. That’s an entirely predictable element of the genre to which the piece belongs. What was troubling but new was Turow’s very wrong assertion that copyright is a fundamental Constitutional right. Here’s how he put it:

Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

To be clear, the Constitution does not “instruct” Congress to do anything at all with respect to the protection of intellectual property, and authors are therefore not “directly protected by the Constitution” any more than any other citizens are directly protected by the Constitution. Here’s what Article 1, Clause 8 of the Constitution says:

The Congress shall have power to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Giving Congress power to do something and instructing Congress to do something are very different things. The critical difference in the law between “may” and “shall” is Law School 101. Exclusive rights in intellectual property are not natural rights, and they’re not fundamental Constitutional rights. They are emphatically not on the order of Due Process, Equal Protection, and the First Amendment. Copyrights are property only if and to the extent that Congress chooses to say they are. Over time, Congress has chosen to make copyrights extremely strong—much stronger, I think, than is necessary to promote the progress of Science, and arguably so strong that we are courting the opposite result.

Intellectual property rights in general and copyrights in particular are important, and when their scope is circumscribed to ensure the existence of a robust public domain, they benefit society. However important IP rights are, though–and reasonable people disagree pretty vigorously about that–they are not fundamental in the Constitutional sense. No reasonable person would argue that they are.


  1. There are countless amounts of people who are breaking the copyright law everyday, and there are numerous others who get their rights stolen from them because they don’t understand the constitution or even the simple moral rights they have to their work. The internet makes copying and cheating a lot easier these days. A lot of students especially college students don’t understand the laws of copyright. A lot of people also don’t understand that there’s a difference between copyright, patent, and trademark. Many people think they’re the same thing, but they’re not. Copyright typically applies to creative works and the ability for the creator to decide who can copy modify or distribute their works. Patent is exclusive control over products like a water bottle that’s produced by some distinct method. Trademark is completely different and is a distinctive mark or logo that distinguishes one product from another. The one thing all of these things do have in common is that fact that they all fall under the protections of intellectual property. These are also all tangible. ideas are not tangible and expressions are; therefore expressions apply to the copyright law; whereas, ideas do not unless they’re turned into expressions by being written down or something. The concept of the public domain is great because it gives society the ability to turn old work into new, but there is a common misconception that modified works from the public domain are still in the public domain and are able to be modified again, but once an expression is changed in some way, it becomes intellectual property again. Ideas and expressions of intellectual property are all just cycles that will cary on for generations.

  2. Robert Cohen says

    “The Congress shall have power to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    I don’t know if there is anything to this, (and merely a historical curiosity), but if one were to track the nouns in Art. I, Sec. 8, Clause 8, one gets:

    [useful] Arts/Inventors/Discoveries

    Assuming that the drafters consciously wrote the nouns in parallel, it looks to me like they were trying to protect a more narrow class of things than the present day Copyright Law protects.

  3. Larry Hosken says

    “Giving Congress power to do something and instructing Congress to do something are very different things. ”

    Could be worse; they also have the power to declare war. Suddenly, a bunch of silly copyright legislation doesn’t seem so bad.

  4. Stephan Kinsella

    That’s what I think about copyrights.

  5. Crosbie Fitch says

    Annemarie, remember that this is 1787 we’re talking about, and that Madison would have used the language familiar to his audience, both in his declaration that copyright had been solemnly adjudged to be a common law right (a misdirection, given he knew it had already been debunked in 1774 ), and in the Constitution’s use of ‘secure’ when empowering Congress to secure that right. The Constitution can only empower Congress to secure those rights that exist prior to the institution of a government, or it could empower Congress to grant privileges to the few, that must necessarily annul the corresponding right from the majority.

    I note your insistence that Congress was empowered to CREATE (qua grant) an exclusive right (a legislatively created ‘right’), but this is not what the Constitution says. It readily empowers Congress to GRANT Letters of Marque however.

    So, either a) Congress is empowered to secure a common law right or b) Congress is empowered to create/grant a privilege.

    One cannot secure privileges and one cannot grant common law/natural rights.

    In describing the purpose of the clause, Madison said that copyright had been adjudged as a common law right (and patent via induction).

    Madison was the instigator of the clause that empowered Congress to secure the author’s common law/natural exclusive right to their writings – the right recognised as such in Wheaton v Peters.

    However much you want to believe it, the clause does not empower Congress to grant monopolies. That Madison/Congress could promptly do so without challenge was enabled under the common wishful thinking within the press, and promulgated by it, that the Statute of Anne was/secured a common law right (despite Donaldson v Beckett). Heaven knows who thought this about patent.

    We know that Madison and Jefferson recognised copyright and patents as monopolies, but they kept this aspect rather quiet when putting the case for the Constitutional clause.

    The clause facilitated the granting of copyright and patent, but it didn’t actually empower Congress to grant these monopolies – it only empowered Congress to secure the common law/natural rights of the individuals to their writings & designs.

    • I don’t even find the word “grant” in Annemarie’s article. And she’s made quite clear that the article is about the distinction between “empowering” and “instructing”. Yet your three (THREE!) different responses all seem to be entirely focused on “grant”

      If you want debate the distinction between “granting” and “securing” (*), shouldn’t you go find a blog article somewhere in which that distinction is actually relevant?

      I, for one, appreciate this blog article, and its calling-out of a completely improper misrepresentation of the actual text of the US Constitution.

      (*) (Which frankly I find pointless. The act of “securing” a right seems practically the same as “granting” it, in that if someone has a right but it’s not secured, that person may as well not have the right. There may well be a valid semantic difference, but I fail to see how it would matter, even if it were pertinent to this article, which it’s clearly not).

      • Crosbie Fitch says


        Annemarie appears to be arguing that the author’s exclusive right to their writings is neither a natural right, nor a common law right.

        I am arguing the contrary, that this right is indeed natural (Wheaton v Peters recognised it as a common law right), and should be secured by Congress as much as the author’s exclusive right to their writing materials.

        Is it irrelevant and pointless to present a counter-argument?

        • Annemarie Bridy says


          You’re making a normative argument about what Congress should do. That’s fine. My point is that the Constitution doesn’t require Congress to do what you think it should do. As for the status of copyright as a common law right, copyright is now an area of exclusive federal jurisdiction, meaning that any inconsistent state common law right is pre-empted by the federal law (i.e., The Copyright Act of 1976).

          § 301. Preemption with respect to other laws

          (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 [17 USCS § 106] in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103 [17 USCS §§ 102 and 103], whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

          Copyright’s roots are in the common law, but it is now a creature of federal statute, and Congress has significant power–given by the Constitution–to shape it. As for natural rights, the U.S. copyright system is not anchored in the moral rights tradition that we see in Europe, for example. In the U.S., historically, copyrights have been treated as economic rights.


          • Crosbie Fitch says

            Annemarie, That some people thought copyright/StatuteOfAnne was/secured a common law right, and that Madison suggested copyright was a common law right, does not constitute copyright having roots in the common law. It has always been a creation of statute.

            However, Congress has no power from the Constitution to shape copyright law (established by the US copyright act 1790). Moreover, it had no power to grant it, and thus must abolish it as unconstitutional.

            Why introduce moral rights into this? Moral rights are natural rights – not privileges. They may be conflated or grouped with copyright (lending a veneer of legitimacy to the latter), but the latter is antithetical to the former.

            Feel free to discount my argument that an individual’s natural rights should be secured by Congress, and focus on my argument that the author’s exclusive right to their writings is a natural right, that Congress is empowered to secure.

          • Mike Lippert says

            I was having trouble, as Annemarie was, with your equating of common law and natural rights. I also do not believe that copyright is a natural right. I grabbed the following definition from wikipedia:

            “Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable. In contrast, legal rights are those bestowed onto a person by a given legal system.”

            That matches my understanding of natural rights as well. Copyrights (and patents) seem clearly legal rights created and enforced by government, not natural rights.

          • Crosbie Fitch says


            It’s good that you, me, and the judiciary recognise and accept that copyright (viz Statute of Anne 1709/1790 onwards) is a privilege created/granted by the state, to be enforced/prosecuted by the holder (albeit relatively recently augmented by state assistance thanks to concerted lobbying), at the holder’s pleasure.

            The Constitution empowers Congress to secure the author’s (already existing/natural) exclusive right to their writings. It does not empower Congress to grant a privilege.

            If the author already has a right, it’s a right they’re born with – not a ‘legally created right’ granted to them, or one they purchased/inherited/received from another author.

            I have not actually equated common law rights with natural rights. However, it would be interesting to enumerate those common law rights that can be distinguished from natural rights, and to analyse precisely how common law is not simply an evolving codification of natural law. But, I digress.

            By “aka natural right”, I suggested that Madison, in saying that copyright had been solemnly adjudged to be a common law right, intended his audience to understand that copyright was a natural right (inherent/innate to the author) that, by the proposed clause, Congress should therefore be empowered to secure.

            If it wasn’t a common law right, and just another state granted privilege (such as a monopoly or Letters of Marque), then Congress would have to be empowered to grant it – not just empowered to secure a pre-existing right.

            Remember, that while copyright/SoA was not unfamiliar to The Framers (or various states’ legislatures), the Constitution could not admit the existence of privileges already granted – in the new or old world. This is why Madison had to suggest that copyright wasn’t a privilege – in order that when he legislated the Statute of Anne as the 1790 US copyright act, people had already been primed to recognise this as law that ‘secures a common law right’ (though it is of course nothing of the sort, but the granting of a monopoly for the benefit of press & state).

            The point is, the clause doesn’t actually empower the granting of copyright or patent, despite enabling Madison’s subsequent granting of those monopolies to proceed with little or no protest. We thus have the granting of the monopolies we call copyright and patent as a fait accompli, and today monopoly-loving lawyers bend over backwards to convince everyone that Congress, of course, had the power to grant these monopolies.

            It’s all rather academic really. As Annemarie observes, the power of Congress is no longer limited by The Constitution, or at least, by strict readings of it.

            James ‘Dr Frankenstein’ Madison chose to unleash Queen Anne’s ‘creatures of statute’ upon the American people, and now they roam the entire planet like Monsters from the Id.

    • John Millington says

      “One cannot secure privileges and one cannot grant common law/natural rights.”

      Why can’t one “secure for limited times” a privilege? In the words right before that, they explained why it’s a good idea to do so.

  6. Crosbie Fitch says

    So, Annemarie, the author’s and inventor’s exclusive right to their writings and designs is a common law right, a natural right – and this right is that which Congress is empowered to secure.

    That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world.

    • Annemarie Bridy says

      Again, I don’t accept the equation between common law rights and natural rights. At the time of the Constitution, copyright was a common law right, which means it had been recognized by the courts. It was also embodied in an English statute–the Statute of Anne. I’m not sure what we’re disagreeing about, beyond your saying that common law rights are the same as natural rights. The fairly simple point I was trying to make is that the Constitution empowers Congress to create exclusive statutory rights in the writings of authors, but it doesn’t “instruct” (to use Turow’s word) or require Congress to do so.

  7. Crosbie Fitch says

    The Constitution’s language of ‘securing’ a right comes from James Madison’s position that copyright (Statute of Anne) was solemnly recognised to be common law right (aka natural right) – and, by induction, that patent was too. Thus Congress is only actually empowered to secure authors’/inventors’ common law rights – not to grant them monopolies.

    That the Statute of Anne was commonly and erroneously believed to secure a common law right does not change the Constitution’s meaning to empower Congress to grant that privilege (as Congress/Madison assumed the power to do so in 1790).

    See and

    • Annemarie Bridy says

      I don’t understand why you equate common law rights and natural rights. The terms aren’t synonyms, at least not as lawyers understand them. A common law right is a right developed through and recognized in judicial opinions, as opposed to having been enacted in a statute or some other legislative instrument. A court that recognizes a common law right might do so because it believes the right is a natural right. It might also do so, however, because it believes that the right developed through custom or longstanding practice and should therefore be formally recognized by the law.

    • peter (hungerburg) says

      To the debate here and below, if I understand Crosbie Fitch fully, he is implying, that the word “right” in the sentence above “Congress shall have power…” refers to some statute or some common law. Wouldn’t then “limited times”, instead of meaning the duration of monopoly granted to the authors, aim at the congress — so that, after some time passes, say a hundred years, the power of congress to secure (that right) would stop?

    • Nathan T. says

      Late yet again in my post, and this topic would have been so fun. As it apparently got a lot of response. But, as this forum does not present a time limit as other forums, I want to throw my two cents in.

      First I agree with the Annemarie here that it is certainly a key distinction over what Congress has authority to do compared to what they are told to do. They have authority to write laws regarding what we call “copyrights” but they do not have to do so, it is not mandatory for them to do so, and thus, authors/inventors (hereafter authors) certainly don’t have a “Constitutional Right” to their monopolies.

      After reading all of Crosbie Fitch’s post, I think I finally get what he/she is trying to say. A history lesson to be sure.

      Well, I am not fully up on the specific understandings of all time periods of the English language. While I recognize the semantics here seems to be the argument, and I recognize the current use as well as some archaic uses of some of the terms, I am going to give Crosbie Fitch the benefit of the doubt as to the argument that Madison knew the words would give a specific meaning to the masses, and yet another to legislatures wanting people to presume natural rights upheld by common law for long enough that they would give little argument to additional rights being granted. [Assuming I understood all of Crosbie’s posts.]

      With that said, whether or not authors have a “natural right” to their works, the Constitution clearly grants congress a power. Now, here is where I may nitpick the words. I say the Constitution grants congress power (or authority) to govern others; because my own study of history leads me to understand that every colony wanted their own sovereignty but realized they needed to join together if they were going to escape the tyranny of England. So, to maintain their own sovereignty (the word State meant individual sovereign nation back then) they joined several States into a Union for specific purposes.

      And the Constitution was drawn up to “grant” or to give power and authority to a government over this Union of distinctly sovereign States. The government was to be setup in a specific way. One of those ways was to have a Congress made up of two houses (the great compromise) to create laws that would stand supreme over even the laws of each individual State, for specific purposes. One of those purposes was “for the general welfare.”

      But, what constitutes “general welfare” that term is different today than back then for sure. On topic, I would have to believe from my own study that Science and Arts were considered as part of the “general welfare” of a civilized yet free society.

      I submit whatever Madison’s motives for his explicit wording on this clause, the clause was included specifically so that Congress would have the power or authority (as they are supposed to have no power except that granted to them in the Constitution, a faulty practice today) to yes indeed secure (or create, or grant, or whatever word you feel comfortable in today’s vernacular using) a monopoly for a limited time over the control of the work. Whether that was a “right” before hand or not, is of ZERO importance. Whether it was law (statute or common) before hand is of ZERO importance. Congress has the “power” as granted by the Constitution to create laws that give authors limited but even monopolistic control over their works, for a “limited time.”

      It was supposed to be a “limited time.” As I have read copyright laws of late, I don’t see any limits. What was 7 years went to 70 and last I heard it was 70 years “beyond the death of the copyright owner” but that the law allows corporations to own and even sell “copyrights” and therefore there is never a death of the copyright owner, even if there is a death of an author.

      As I read the law now, it appears to me that Congress has overstepped their bounds and granted authors/corps. the exclusive monopolistic rights to control their work “for an unlimited” amount of time, instead of a limited amount of time.

      As I read it, natural right or not. Congress was not meant to allow monopolies for unlimited time, because that indeed goes against the purpose. And, the semantics are of little importance compared to the purpose.

      The purpose in the clause is “to promote the progress of Science and the useful Arts.” Thus, even if such a monopoly or just a common law application of some rights is natural and can always retained by authors, when it comes to laws of the States (in the Union) they are only allowed laws that have the purpose of the general welfare of said “science” and “arts.” Anything beyond promoting the welfare of progress is tyranny. And, our current copyright laws are certainly tyranny.

      Not to take rights away from authors, but that it was recognize that having “public domain” as we call it today, not sure what they called it then, promotes progress. And, thus, such “rights” should NOT be granted, secured, observed, or anything of the sort beyond a limited time. The purpose was NOT about profits, though that is apparently the purpose of copyrights today, but about progress. The key word in the clause if you are going to nitpick semantics is “limited time.”

      In a free society we have certain “rights” to be sure; but along with those we must maintain others’ “rights.” The “public” at large has rights that supersede an individual author’s “rights.” Unfortunately, it is not seen that way today.

      But, it has been so twisted in our culture that most believe the purpose of copyright law, is to make sure that the authors are able to profit from their work. And from that standpoint, the laws have been written and re-written ever granting greater profits. To the point I agree again with Annemarie here “that we are courting the opposite result” or one of actually stopping and even to the point of regressing science at the very least (the arts not so much) [specifically speaking; that the courts even have to determine whether or not a company can patent a genome and hence keep others from utilizing such science.]