Constitutional Foundations of Copyright and Patent in the First Congress

Abstract

The First U.S. Congress is the most important Congress ever convened. Called the “Constitutional Congress” by some historians, the inaugural legislative body that met between 1789 and 1791 passed a series of momentous measures that still shape the contours of American constitutionalism. The accomplishments of the First Congress in implementing the Constitution’s many provisions, establishing a working federal government, and defining the relationships among the three branches were praised in its day. In the time since its adjournment, the distinguished membership and record of the First Congress has been acknowledged by figures such as John Marshall and Abraham Lincoln. And this is especially so regarding the insights into the Constitution’s meaning that may be derived from the First Congress’s actions.

Therefore, the proceedings of the First Congress inform our understanding of the underlying logic and significance of intellectual property (IP) rights in the American constitutional order. The First Congress not only passed organic acts that set up the federal judiciary, organized the executive departments, established a revenue system, defined legislative roles in federal affairs, selected the permanent capital of the nation, provided for federal control over territories as well as the admission of new states, and drafted the Bill of Rights; it also passed the first Copyright Act and first Patent Act.

That the First Congress saw fit to include copyright and patent in its ambitious, historic legislative agenda suggests its members found intellectual property especially important to furthering the new nation’s economic, artistic, and technological progress. Passage of the Copyright and Patent Acts also indicates a consensus regarding the legitimacy and efficacy of a pro-IP rights policy – a consensus conspicuously absent when it came to Congressional deliberation on other matters.

This paper is the sixth in a series of works on foundational principles of intellectual property. Links to the previous five works may be found at the end of this paper.

Keywords: Copyright, Patent, Intellectual Property, Constitution, First Congress, James Madison

JEL Classification: K11