by Randolph J. May, Seth L. Cooper
Free State Foundation
February 12, 2014
Anyone interested in understanding the Constitution’s Article I, Section 8 Intellectual Property Clause should carefully consider James Madison’s meaning in Federalist No. 43. In subtle and succinct fashion, Federalist No. 43 identifies the ultimate source for copyright and patent in an individual’s natural right to the fruits of his or her labor. Madison regarded copyright and patent as forms of property that government is established to protect. Additionally, as Federalist No. 43 and other numbers point out, securing an individual’s IP rights also furthers the public good by incentivizing further investments and discoveries that promote the “progress of science and useful arts.” Consistent with Federalist No. 43, considerations of public good or social utility may be said to supply a boundary principle for IP rights, but natural right supplies IP’s grounding principle in Publius’s exploration of the U.S. Constitution.