Thomas Jefferson's copyright term (fwd)
- From: John Mark Ockerbloom (spok+books@[redacted]
- Subject: Thomas Jefferson's copyright term (fwd)
- Date: Thu, 11 Feb 1999 16:10:44 -0600 (CST)
[Timothy Phillips wrote the following review of Jefferson's and
Madison's views on copyright, which I thought listmembers might
like seeing. Thanks to Charles Keller for forwarding it on to me,
and to the author for letting it be crossposted from the CNI-Copyright
list. For more information on that list, see
http://www.cni.org/Hforums/cni-copyright/
(Unfortunately, their web archives seem not to contain recent posts,
but the list itself seems to still be active.)
For other letters and works by Jefferson, see, among other places,
http://etext.virginia.edu/jefferson/
--John]
Date: Tue, 9 Feb 1999 12:28:58 -0600 (CST)
From: Timothy Phillips <hrothgar@[redacted]>
Reply-To: cni-copyright@[redacted]
To: Multiple recipients of list <cni-copyright@[redacted]>
Subject: Thomas Jefferson's copyright term
Thomas Jefferson (1743-1826), in his correspondence with James
Madison (1751-1836) was initially hostile to the provision for
copyright and patent law in the United States Constitution. On
Dec. 20, 1787, Jefferson wrote to Madison from France concerning
the recently-drafted Constitution:
I do not like... the omission of a bill of rights
providing clearly and without the aid of sophisms
for freedom of religion, freedom of the press,
protection against standing armies, restriction
against monopolies, the eternal and unremitting
force of the habeas corpus laws, and trials by
jury in all matters of fact triable by the laws of
the land...
Here Jefferson considers freedom from copyright and patent laws
and other monopolies to be of similar importance to freedom of
speech, religion, and the press. He repeated this view in his letter
to Madison dated July 31, 1788:
I sincerely rejoice at the acceptance of our
new constitution by nine states. It is a good
canvas, on which some strokes only want
re-touching. What these are, I think are sufficiently
manifested by the general voice from North to South,
which calls for a bill of rights. It seems pretty
generally understood that this should go to juries,
habeas corpus, standing armies, printing, religion
and monopolies. I conceive there may be difficulty
in finding general modification of these suited to
the habits of all the states. But if such cannot
be found then it is better to establish trials by jury,
the right of Habeas corpus, freedom of the press
and freedom of religion in all cases, and to abolish
standing armies in time of peace, and monopolies, in
all cases, than not to do it in any... The saying
there shall be no monopolies lessens the incitements
to ingenuity, which is spurred on by the hope of a
monopoly for a limited time, as of 14 years; but the
benefit even of limited monopolies is too doubtful to
be opposed to that of their general suppression.
Madison, in a letter of October 17, 1788, responded,
With regard to monopolies they are justly
classed among the greates nuisances in government.
But is it clear that as encouragements to literary
works and ingenious discoveries, they are not too
valuable to be wholly renounced? Would it not
suffice to reserve in all cases a right to the public
to abolish the privilege at a price to be specified
in the grant of it? Is there not also infinitely
less danger of this abuse in our governments than in
most others? Monopolies are sacrifices of the many
to the few. Where the power is in the few it is
natural for them to sacrifice the many to their own
partialities and corruptions. Where the power, as
with us, is in the many not in the few, the danger
can not be very great that the few will be thus
favored. It is much more to be dreaded that the
few will be unnecessarily sacrificed to the many.
(I consider the recent copyright extension to be an example of the
very thing which Madison thought there was little danger of: a
sacrifice of the many to the "partialities and corruptions" of a
powerful few.)
Jefferson was either convinced by Madision of the utility of copyrights
and patents, or he at least prudently decided to cut his losses, for
he proposed to Madison the following addition to the bill of rights on
August 28, 1789:
I like the declaration of rights as far as it goes,
but I should have been for going further. For
instance, the following alterations and additons would
have pleased me... Article 9. Monopolies may be
allowed to persons for their own productions in literature,
and their own inventions in the arts, for a term not
exceeding ___ years, but for no longer term, and for no
other purpose.
The blank was to be filled with some appropriate number later to
be determined. Here again Jefferson considers the protection of
the public against unduly long copyrights and patents to be a
fundamental right, important enough to be safeguarded by a bill
of rights.
Jefferson's own preference for the term of copyright was communi-
cated to Madison a few days afterward, in a letter of September 6,
1789. There he proposed a term of 19 years, based on an actuarial
calculation:
The question Whether one generation of men has
a right to bind another seems never to have
been started on this [i.e., the European side --
Jefferson was writing from France] or our [American]
side of the water... that no such obligation can
be so transmitted I think very capable of proof. --
I set out on this ground, which I suppose to be
self evident, that the earth belongs in usufruct
to the living; that the dead have neither powers
nor rights over it... A generation coming in and
going out entire... would have a right on the first
year of their self-dominion to contract a debt
for 33 years, in the 10th for 24, in the 20th for
14, in the 30th for 4, whereas generations, changing
daily by daily deaths and births, have one constant
term, beginning at the date of their contract, and
ending when a majority of those of full age at that
date shall be dead. The length of that term may
be estimated from the tables of mortality. Take,
for instance, the tables of M. de Buffon...
[according to which] half of those of 21 years [of
age] and upwards living at any one instant of time will
be dead in 18 years 8 months, or say 19 years as the
nearest integral number. Then 19 years is the term
beyond which neither the representatives of a nation,
nor even the whole nation itself assembled, can validly
extend a debt... This principle that the earth belongs
to the living, and not to the dead, is of very extensive
application... Turn this subject in your mind, my
dear Sir... Your station in the councils of our country
gives you an opportunity for producing it to public
consideration... Establish the principle... in the
new law to be passed for protecting copyrights and new
inventions, by securing the exclusive right for 19
instead of 14 years.
A Jeffersonian computation using life tables from 1992 gives a
Jeffersonian copyright term of 30-35 years. (Vital Statistics of
the United States 1992, Volume II--Mortality, Part A, Public
Health Service, Hyattsville, 1996, Section 6, Table 6-1.) Note,
howver, that at least one edition of Jefferson's works has a
much abridged version of this letter, in which the 19-year
computation and the proposal for the term of copyright do not
occur.
One of Jefferson's most famous statements on patent law was in
his often-quoted letter of August 13, 1813 to Isaac McPherson, in
which he wrote that, since there is no natural right to property in
land, how much less is there a natural right to a property in ideas.
I think Jefferson's words apply equally well to copyrights as to
patents; to "expression" as well as to "ideas": "he who lights
his taper at mine, receives light without darkening me."
Tim Phillips
<hrothgar@[redacted]>