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The legal scheme of intellectual property in the United States is an unusual one, relative to the schema of our cousins in other liberal Western democracies. Article I, Section 8, Clause 8 of our Constitution, the source of Congress' power to protect intellectual property, reads as follows:

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

For our present purposes, there are two key items to draw out of this clause. First, we notice that the “exclusive Right” of authors and inventors is secured in order “to promote the Progress of Science and useful Arts.” This is to say that protecting individual authors and inventors is not, strictly speaking, the point of intellectual property in the United States; rather, the object is to produce society-wide benefits via the progress of science and useful arts.

Second, we notice that the clause reads that Congress “shall have the power to promote...” and not that Congress “shall promote....” This implies that Congress is under no constitutional obligation to actually exercise this power; it may, at its discretion, allow intellectual property rights to lie unprotected. Contrast this with the treatment of other property rights under the Constitution, particularly in the Third, Fourth, and Fifth Amendments.

Taken together, these insights make it clear that under American law, the right to one's intellectual property is not regarded as a natural, inalienable right as is the right to one's landed property. Rather, intellectual property in the United States is an article of convenience for legislators and the society they represent: to the extent that intellectual property laws are thought to be expedient, they will stay in place, and to the extent that they are not, they can be discarded.

As I say above, this makes the United States unusual. Elsewhere, the individual author is held to be preeminent, with works of authorship thought to embody part of the spirit of the author and the proprietary right meant to be a reward for the author's investment in skill, judgment, and labor to create the work. Thus came the historic battle between the United States and the international community over the necessity of complying with formalities of statute in order for works to gain the protection of copyright law, and the still-raging debate over recognition of moral rights of authors, e.g., the rights of attribution, integrity, and withdrawal.

Consequently, the discussion of intellectual property in the United States has focused on economic concerns, with developments in the law favoring restrictions on sharing– increased terms of protection, additional rights added to the bundle, tighter controls meant to extend those rights into new forms of media, etc. – presumed by Congress to have positive economic effects. However, as the landscape has transitioned away from physical media, the underlying economic reality has changed. The price of goods will approach their marginal cost of production; in a digital environment the marginal cost of producing new copies of content is effectively zero and thus those prices should naturally approach zero. As they do, there will be less and less incentive for content creators to hold closely the exclusive rights of intellectual property – if you are giving away your content, bearing the costs of prosecuting your rights against an infringer who is also giving away your content makes little economic sense – and Congress and other policy leaders may be tempted to strip the law of intellectual property of the protections developed in an earlier technological and economic paradigm.

I argue that Congress should – perhaps not in every single case, but broadly and to a non-trivial extent – resist that temptation. This argument follows from the notion that other nations have it right and the framers of our Constitution were wrong: that intellectual property is not solely a tool of convenience that Congress may use to spur progress in the arts and useful sciences if it so chooses, but that it instead derives naturally from the personhood of the author embodied in its creation. Creators of intellectual property – from the lowliest self-published author to Hollywood studios – invest massively in producing their works and incur huge relative costs in doing so. Further, regardless of whether these creators have any expectation – reasonable or otherwise – of finding a market and deriving pecuniary benefit from their work, they do expect to have at least some level of control over their work: whether and in what form they will publish their work, whether and to what extent others will be allowed to take their work in new directions, whether and in what ways others will be allowed to make profit on the back of their work.

Congress need not fear that the continuation of intellectual property rights in more or less their present form will artificially impede the development of growth in the emerging sharing economy. By the principles of zero marginal cost goods – that functional goods produced without property relations will be superior in quality, and that nonfunctional goods produced without property relations will be superior in distribution – the sharing economy will dominate the proprietary economy so long as the law does not prevent sharing. With simple legal tools or even simpler non-enforcement, the law will be no obstacle, and from there natural market forces will force the reluctant get with the program.

But economics are not the heart of intellectual property. Rather, its heart is found in the spark of creativity of the author, the soul and sweat that she pours into her work. If the author wants to hold on to the fruit of that spark, even in the face of economic forces compelling her otherwise, the law should recognize her natural right to do so.

-- TomLawrence - 20 Jan 2015