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Frames from the Framers: How America's Revolutionaries Imagined Intellectual Property

Lewis Hyde

Harvard University - Berkman Center for Internet & Society

December 13, 2005

Berkman Center Research Publication No. 2005-08

The men who framed the U.S. Constitution had inherited from the past several ways of thinking about cultural creations. The dominant metaphor in England for many years had compared creative work to the harvest of a landed estate. ("His Brain, which was his Estate, had as regular and different Produce as other Men's Land," wrote Joseph Addison of an author friend.) The estate metaphor was bounded by two others, however: commonwealth and monopoly. For some, the fruits of creativity should be "common stock," as free and general as air or water, and therefore the estate in question should not be a private holding but more like the old agricultural commons. For others, private estates were fine, but no one should monopolize their fruits. Copyright and patent were understood to be monopolies, and unchecked monopolies were understood as social evils.

Such was the discursive field available to men like Madison, Jefferson, and Adams. The latter part of the essay argues that the Founders resolved the tension between commonwealth and monopoly though a civic republican model that allowed for private ownership so long as intellectual property was not held in perpetuity but given, after a short time, to the public. The Constitutional proposition, therefore, is that intellectual property should ultimately be a republican estate, an intangible equivalent of tangible res publicae (roads, bridge, harbors), or of the Republic itself.

Number of Pages in PDF File: 34

Keywords: copyright, monopoly, commons, framing, civic republicanism

JEL Classification: O340, Z110, Z190

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Date posted: December 16, 2005  

Suggested Citation

Hyde, Lewis, Frames from the Framers: How America's Revolutionaries Imagined Intellectual Property (December 13, 2005). Berkman Center Research Publication No. 2005-08. Available at SSRN: http://ssrn.com/abstract=870073 or http://dx.doi.org/10.2139/ssrn.870073

Contact Information

Lewis Hyde (Contact Author)
Harvard University - Berkman Center for Internet & Society ( email )
Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States
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