Copyrights, Fundamental Rights, and the Constitution

There was a lot to take issue with in Scott Turow’s recent op-ed in The New York Times. Turow, who is currently President of the Authors Guild, took to The Times to criticize the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, which brought physical books manufactured and sold abroad within the protective scope of copyright’s first sale doctrine. Turow cast the Court’s decision as another blow to authors’ rights, which, by his account, are being pitilessly washed away by the digital tides. He blames the usual suspects: e-books,, pirates, Google, and – this last one may surprise you – libraries. The coup de grace, he asserted, will be the extension of first sale rights to digital copies of books. (It may comfort him to know that the possibility of that happening is more remote following Redigi’s recent defeat in federal district court.)

What bothered me most about Turow’s argument, however, wasn’t its scapegoating of digital technology. That’s an entirely predictable element of the genre to which the piece belongs. What was troubling but new was Turow’s very wrong assertion that copyright is a fundamental Constitutional right. Here’s how he put it:

Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

To be clear, the Constitution does not “instruct” Congress to do anything at all with respect to the protection of intellectual property, and authors are therefore not “directly protected by the Constitution” any more than any other citizens are directly protected by the Constitution. Here’s what Article 1, Clause 8 of the Constitution says:

The Congress shall have power to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Giving Congress power to do something and instructing Congress to do something are very different things. The critical difference in the law between “may” and “shall” is Law School 101. Exclusive rights in intellectual property are not natural rights, and they’re not fundamental Constitutional rights. They are emphatically not on the order of Due Process, Equal Protection, and the First Amendment. Copyrights are property only if and to the extent that Congress chooses to say they are. Over time, Congress has chosen to make copyrights extremely strong—much stronger, I think, than is necessary to promote the progress of Science, and arguably so strong that we are courting the opposite result.

Intellectual property rights in general and copyrights in particular are important, and when their scope is circumscribed to ensure the existence of a robust public domain, they benefit society. However important IP rights are, though–and reasonable people disagree pretty vigorously about that–they are not fundamental in the Constitutional sense. No reasonable person would argue that they are.

Editor’s note: This posting was originally published on Freedom to Tinker, and republished with the permission of the author.

Posted in: Copyright, Intellectual Property, Legal Research