|
The American Revolution involved a crisis over the source and security of Americans’ rights. Initially, the colonists relied upon overlapping sources: the English Constitution and common law, colonial charters, and natural rights. The First Continental Congress claimed rights based upon “the immutable laws of nature, the principles of the English constitution, and the several charters or compacts.”
As the imperial controversy deepened, reliance upon English constitutional protections became increasingly untenable. Parliament asserted supreme authority, colonial charters and institutions were overridden, and repeated petitions for redress failed. As Adams later summarized the transformation in the Jubilee, “English liberties had failed them.” Americans therefore appealed “from the omnipotence of Parliament” to a higher source: “the rights of man.” “Thenceforth,” Adams wrote, “their charter was the Declaration of Independence. Their rights, the natural rights of mankind.”
The Declaration grounded American independence in a higher law, declaring that men are “endowed by their Creator with certain unalienable Rights” and that governments are instituted “to secure these rights,” deriving their “just powers from the consent of the governed.” It thus addressed both the source and security of rights: government does not create rights, but exists to secure them.
The Constitution supplied the fundamental legal structure for carrying those principles into effective government. The Articles of Confederation had proved, in Adams’s words, “radically defective.” The Constitution represented a “return to the principles of the Declaration of Independence” because its authority emanated from the people and because it created a national government possessing powers sufficient to accomplish its assigned purposes.
Adams contended that the Declaration’s principles were expressed in the Constitution’s Preamble:
We the people of the United States, in order to form a more perfect union, establish Justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
Importantly, the Constitution contained and distributed governmental authority to give those principles practical effect. The rights to be secured included property. In the political philosophy of the Founding Fathers, individual liberty included the right to enjoy the fruits of one’s labor – a principle with direct significance for copyright. Free State Foundation President Randolph May and I have examined the Founding Fathers’ understanding of natural property rights understanding and its connection to copyright in our book, The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press, 2015).
Yet ratification of the Constitution did not complete the project. John Quincy Adams emphasized that the new Constitution still had “to be demonstrated by its practical operation.” He credited the First Congress with organizing government “conformably to the new constitution, and to give it practical operation” by establishing courts, executive departments, and a revenue system. And he credited the Washington Administration for having “settled upon firm foundations the practical execution of the Constitution.”
Copyright illustrates the kind of problem that the new constitutional system was designed to address. Under British law, authors’ rights had an uncertain foundation, and America lacked a comprehensive system for protecting literary property. Following independence, American states increasingly recognized copyright, frequently in natural rights terms. Yet separate state laws could not provide national protection. James Madison called the “want of uniformity in the laws concerning . . . literary property” one of the “vices” of the American political system under the Articles of Confederation.
The Constitution addressed that deficiency by supplying the national authority that the states acting separately lacked. Article I, Section 8 empowers Congress: “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.”
The First Congress then put that constitutional power into operation. On May 31, 1790, President Washington signed the first federal Copyright Act, entitled “An Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned.” The Act gave qualifying authors and proprietors the “sole right and liberty of printing, reprinting, publishing and vending” their protected works for fourteen years, renewable for another fourteen, and supplied rules and remedies for national enforcement.
The recurrence of the word “secure” is significant. The Declaration stated that governments are instituted “to secure” rights that precede government. The Constitution authorized Congress to promote progress “by securing” authors’ exclusive rights. And the first Copyright Act described its purpose of “securing” protected works to authors. “Securing” rights thus has two related aspects: protecting rights not created by government, and providing consistent protection to all. That responsibility includes defining the legal boundaries and conditions for recognizing, exercising, and enforcing those rights.
Copyright therefore provides a focused illustration of the Declaration-Constitution relationship. The Declaration announced enduring principles concerning rights and the purpose of government. The Constitution established institutions and powers capable of securing those rights. The new federal government then gave those powers “practical operation.” Copyright similarly moved from uncertain and fragmented protection to an express constitutional foundation and an effective national system of protection.
The natural rights principles of the Declaration remain true, and those principles support the just claims of creative artists to the fruits of their efforts. The Copyright Act of 1790 was only the first implementation of the Copyright Clause, not its completion. Congress retains responsibility to secure copyrights as technologies, markets, and new forms of creative expression emerge.
In 2026, Congress can fulfill its duty by strengthening protection for sound recordings, combating large-scale piracy, improving practical enforcement through the Copyright Claims Board, preserving Congress’s constitutional role against the ALI’s misguided effort to reshape copyright through its Restatement, and resisting new exceptions that would permit artificial intelligence (AI) services to exploit copyrighted works without consent or compensation to creative artists.
| 
