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Origins of Intellectual Property Law

Posted by attorney Judith Silver

Intellectual Property is the group of legal rights in things that people create or invent. Intellectual property rights include patent, copyright, trademark and trade secret rights. In Europe and some other countries, “moral rights", which are rights of the artist not to have her work greatly altered, are also included.

Most people are surprised to discover that intellectual property rights originated with our Founding Fathers in Article 1, Section 8, Clause 8 of the U.S. Constitution which states that Congress shall have the power “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 right to exclusive ownership and use of one’s inventions and the monetary rewards from giving others permission to use them, work in conjunction with the other beliefs of our Founders.

In the middle to late nineteen century, fostering of creation with monetary reward grew into capitalism. Capitalism embodied (a) the benefits and rewards of hard work (concepts from Puritanism); (b) the exchange of business ideas through products and services; and (c) competition in the marketplace and financial reward for the most popular or beneficial ideas, i.e. those items that sell the most make the most for their inventors.

It was not accidental that capitalism had many of the same theoretical bases as Charles Darwin’s notions of survival of the fittest that was authored during roughly the same time period. Author and Harvard biology professor Stephen Jay Gould states that Darwin read economist Adam Smith’s writings prior to authoring his “survival of the fittest" theory [1].

Indeed, intellectual property law, with exception of patents that preceded the rest in codification by several centuries, was mostly codified during this same period -- the late eighteenth to late nineteenth centuries. The laws sought to protection rights in creations and ensure earned monetary reward for their creators. These rewards incentivized others to create.

The heart of United States intellectual property law is the balancing of two goals: financially rewarding creation through granting of exclusive rights to the creators, and promoting the free flow of ideas to facilitate more inventions. The tension in these goals reflects the careful balance between the “Promotion of Science and Useful Arts" Constitutional clause above and the First Amendment – between ownership of art and words and the freedom to speak and express them.

Understanding the tension between these goals is the key to understanding intellectual property law. The balance of these concepts is visible throughout intellectual property cases and statutes. Keep these goals in mind whenever you try to assess an intellectual property problem and the solution will be much easier to grasp.

[1] Stephen Jay Gould, The Panda's Thumb: More Reflections in Natural History(New York: Norton, 1982), p.64 as reported on

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