[Please see the discussion page for some suggestions on how to update this part.]This is the difference between these two very different kinds of property, and this difference affects fundamentally the nature of intellectual property law. While we protect real and personal property to protect the owner from harm and give the owner an incentive, we protect intellectual property only to ensure that we create a sufficient incentive to produce it. “Sufficient incentive,” however, is something less than “perfect control.” And in turn we can say that the ideal protections of intellectual property law are something less than the ideal protections for ordinary or real property.

This difference between the nature of intellectual property and ordinary property was recognized by our Constitution, which in article I, section 8, clause 8, gives Congress 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.”

Note the special structure of this clause. First, it sets forth the precise reason for the power—to promote the progress of science and useful arts. It is for those reasons, and those reasons only, that Congress may grant an exclusive right—otherwise known as a monopoly. And second, note the special temporality of this right: “for limited Times.” The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only limited rights. It does not give Congress the power to give them “property” in their writings and discoveries, only an exclusive right over them for a limited time.

The Constitution’s protection for intellectual property then is fundamentally different from its protection of ordinary property. I’ve said that all property is granted subject to the limit of the public good. But even so, if the government decided to nationalize all property after a fifteen-year term of ownership, the Constitution would require it to compensate the owners. By contrast, if Congress set the copyright term at fifteen years, there would be no claim that the government pay compensation after the fifteen years were up. Intellectual property rights are a monopoly that the state gives to producers of intellectual property in exchange for their producing intellectual property. After a limited time, the product of their work becomes the public’s to use as it wants. This is Communism, at the core of our Constitution’s protection of intellectual property. This “property” is not property in the ordinary sense of that term.

And this is true for reasons better than tradition as well. Economists have long understood that granting property rights over information is dangerous (to say the least).¹ This is not because of leftist leanings among economists. It is because economists are pragmatists, and their objective in granting any property right is simply to facilitate production. But there is no way to know, in principle, whether increasing or decreasing the rights granted under intellectual property law will lead to an increase in the production of intellectual property. The reasons are complex, but the point is not: increasing intellectual property’s protection is not guaranteed to “promote the progress of science and useful arts”—indeed, often doing so will stifle it.

The balance that intellectual property law traditionally strikes is between the protections granted the author and the public use or access granted everyone else. The aim is to give the author sufficient incentive to produce. Built into the law of intellectual property are limits on the power of the author to control use of the ideas she has created.²

A classic example of these limits and of this public use dimension is the right of “fair use.” Fair use is the right to use copyrighted material, regardless of the wishes of the owner of that material. A copyright gives the owner certain rights; fair use is a limitation on those rights. Under the right of fair use, you can criticize this book, cut sections from it, and reproduce them in an article attacking me. In these ways and in others, you have the right to use this book independent of how I say it should be used.

Fair use does not necessarily work against the author’s interest—or more accurately, fair use does not necessarily work against the interests of authors as a class. When fair use protects the right of reviewers to criticize books without the permission of authors, then more critics criticize. And the more criticism there is, the better the information is about what books people should buy. And the better the information is about what to buy, the more people there are who will buy. Authors as a whole benefit from the system of fair use, even if particular authors do not.

Taken together, these rules give the creator significant control over the use of what he produces, but never perfect control. They give the public some access, but not complete access. They are balanced by design, and different from the balance the law strikes for ordinary property. They are constitutionally structured to help build an intellectual and cultural commons.

The law strikes this balance. It is not a balance that would exist in nature. Without the law, and before cyberspace, authors would have very little protection; with the law, they have significant, but not perfect, protection. The law gives authors something they otherwise would not have in exchange for limits on their rights, secured to benefit the intellectual commons as a whole.

Footnotes

¹ For an extensive and balanced analysis, see William M. Landes and Richard A. Posner, “An Economic Analysis of Copyright Law,” Journal of Legal Studies 18 (1989): 325, 325–27, 344–46. These authors note that because ideas are a public good—that is, an infinite number of people can use an idea without using it up—ideas are readily appropriated from the creator by other people. Hence, copyright protection attempts to balance efficiently the benefits of creating new works with the losses from limiting access and the costs of administering copyright protection; copyright protection seeks to promote the public benefit of advancing knowledge and learning by means of an incentive system. The economic rewards of the marketplace are offered to authors in order to stimulate them to produce and disseminate new works (326). See also Posner, Law and Literature, 389–405. Edit Delete

² These limits come from both the limits in the copyright clause, which sets its purposes out quite clearly, and the First Amendment; see, for example, Feist Publications, Inc. v Rural Telephone Service Co., 499 US 340, 346 (1991). Edit Delete

³ The “first sale” doctrine was developed under 27 of the former Copyright Act (17 USC [1970]) and has since been adopted under 109(a) of the present Copyright Act; see United States v Goss, 803 F2d 638 (11th Cir 1989) (discussing both versions of the Copyright Act). Edit Delete

⁴ Europeans like to say that “moral rights” have been part of their system since the beginning of time, but as Professor Jane C. Ginsburg has shown with respect to France, they are actually a nineteenth-century creation; see “A Tale of Two Copyrights: Literary Property in Revolutionary France and America,” Tulane Law Review 64 (1990): 991. Edit Delete

⁵ Or so it is argued in Eldred v Reno (DDC filed January 4, 1999). Edit Delete