Thomas Jefferson’s Proposal to Limit the Length of Patent and Copyright in the Bill of Rights

Patent and copyright apologists often get indignant when you describe the patent and copyright monopolies that they advocate as monopolies.  For example here, patent lawyer and patent shill Dale Halling posts about “The Myth that Patents are a Monopoly” and writes, ” People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.”

But obviously patent and copyright are monopoly privileges, as I amply demonstrate in Are Patents “Monopolies”?

I just came across something interesting in this regard. In Thomas Jefferson’s Letter to James Madison, August 28, 1789 (On the liberty to write, speak, and publish and its limits), he proposes to James Madison, then in the process of drafting the Bill of Rights, that the following be incorporated into the Bill of Rights:

Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.

This was written just shortly before the Constitution itself was to be ratified. It appears to be aimed at adding a limit on how many years Congress could grant patent and copyright monopolies for. The copyright and patent clause in the then-pending Constitution had no outside limit on how long the patent and copyright monopoly grants could be, providing: “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.” Jefferson apparently wanted the “limited time” to be capped at some maximum number of years (probably 14 or 21 years or so). If he had got his way, (a) it would be clearer to everyone that patent and copyright are monopolies, and (b) Big Media and Mickey Mouse would not have been able to extend the copyright term to its current 100+ years.

I’m reminded of a similar situation I’ve noted elsewhere that, during debate on the sixteenth amendment (income tax), a 10% cap was considered, but rejected for fear Congress might actually tax at such a high rate, and “because people thought the idea that the tax might ever rise that high too absurd to address”! If only we had had a 10% income tax cap and a 21 year patent and copyright cap!


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  • Fantastic find here.

    • I think Jefferson put it best when he said, “The Constitution is like an inanimate carbon rod, it’s just way better than you.”

  • If we have right to use three things separately, I see nothing in reason or in the law, which forbids our using them all together. A man has a right to use a saw, an axe, a plane, separately; may he not combine their uses on the same piece of wood? He has a right to use his knife to cut his meat, a fork to hold it; may a patentee take from him the right to combine their use on the same subject?

    If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

    Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.

    He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

    That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

    Inventions then cannot, in nature, be a subject of property.

    – Thomas Jefferson ( )