17
So Jefferson gives us a classic set of cautions, cautions that we should be required to repeat, as police officers repeat the Miranda Warning to a suspect. In this case, they should be repeated before we rush off into the world of intellectual property policy rather than before we talk to the police without our lawyers present. 18
THE JEFFERSON WARNING 19
Like the Miranda Warning, the Jefferson Warning has a number of important parts. 20
* First, the stuff we cover with intellectual property rights has certain vital differences from the stuff we cover with tangible property rights. Partly because of those differences, Jefferson, like most of his successors in the United States, does not see intellectual property as a claim of natural right based on expended labor. Instead it is a temporary state-created monopoly given to encourage further innovation. * Second, there is no "entitlement" to have an intellectual property right. Such rights may or may not be given as a matter of social "will and convenience" without "claim or complaint from any body." * Third, intellectual property rights are not and should not be permanent; in fact they should be tightly limited in time and should not last a day longer than necessary to encourage the innovation in the first place. * Fourth, a linked point, they have considerable monopolistic dangers—they may well produce more "embarrassment than advantage." In fact, since intellectual property rights potentially restrain the benevolent tendency of "ideas . . . [to] freely spread from one to another over the globe, for the moral and mutual instruction of man," they may in some cases actually hinder rather than encourage innovation. * Fifth, deciding whether to have an intellectual property system is only the first choice in a long series.13 Even if one believes that intellectual property is a good idea, which I firmly do, one will still have the hard job of saying which types of innovation or information are "worth to the public the embarrassment" of an exclusive right, and of drawing the limits of that right. This line-drawing task turns out to be very difficult. Without the cautions that Jefferson gave us it is impossible to do it well. 21
Jefferson's message was famously echoed and amplified thirty years later in Britain by Thomas Babington Macaulay.14 Macaulay's speeches to the House of Commons in 1841 on the subject of copyright term extension still express better than anything else the position that intellectual property rights are necessary evils which must be carefully circumscribed by law. In order for the supply of valuable books to be maintained, authors "must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright." Patronage is rejected out of hand. "I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles."15 22
We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. . . . I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.16 23
Notice that it is the monopolistic quality of intellectual property that really disturbs Macaulay. His was a generation of thinkers for whom the negative effect of monopolies of any kind (and state-granted monopolies in particular) was axiomatic. He becomes almost contemptuous when one of the supporters of copyright extension declared that it was merely "a theory" that monopoly makes things expensive. Macaulay agrees, tongue in cheek. "It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates."17 24
These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom. Certainly the U.S. Supreme Court has offered support for that position,18 and, with one significant recent exception,19 historians of intellectual property have agreed.20 Jefferson himself had believed that the Constitution should have definite limits on both the term and the scope of intellectual property rights.21 James Madison stressed the costs of any intellectual property right and the need to limit its term and to allow the government to end the monopoly by compulsory purchase if necessary.22 Adam Smith expressed similar views. Monopolies that carry on long after they were needed to encourage some socially beneficial activity, he said, tax every other citizen "very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on."23 25
It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them—Jefferson, Madison, Smith, and Macaulay—could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term. Here is Macaulay again, waxing eloquently sarcastic about the costs and benefits of extending the copyright term so that it would last many years after the author's death: 26