Book People Archive

Thomas Jefferson's copyright term (fwd)

[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

 (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,

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 

     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

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