[Commons-Law] Jefferson on IPR

[Pranesh Prakash]

Dear All,
This is a site that is, in its own words, A Primer in Modern Intellectual
Property Law <http://cnx.org/content/m11795/latest/>.  It is a very brief
primer, and does a good job of laying out the foundations of IP, though it
only on IP in the United States.  Very importantly, it contains bits of a
letter penned by Thomas Jefferson (who, if you didn't know already, while he
was Secretary of State in 1790, was on the first Patent
Board<http://www.uspto.gov/web/offices/com/speeches/02-26.htm>,
and was "considered the first administrator of the American patent system
and the first patent examiner"; and was also the one
credited<www.uspto.gov/web/offices/pac/mpep/documents/2100_2106.htm>as
being the author of the Patent Act of 1793.)  These excerpts make for
very interesting reading.  Some bits are reminiscent of Justice Louis
Brandeis' "Free as the air to common use."

It has been pretended by some, (and in England especially,) that inventors
> have a natural and exclusive right to their inventions, and not merely for
> their own lives, but inheritable to their heirs. But while it is a moot
> question whether the origin of any kind of property is derived from nature
> at all, it would be singular to admit a natural and even an hereditary right
> to inventors. It is agreed by those who have seriously considered the
> subject, that no individual has, of natural right, a separate property in an
> acre of land, for instance. By an universal law, indeed, whatever, whether
> fixed or movable, belongs to all men equally and in common, is the property
> for the moment of him who occupies it; but when he relinquishes the
> occupation, the property goes with it. Stable ownership is the gift of
> social law, and is given late in the progress of society. It would be
> curious then, if an idea, the fugitive fermentation of an individual brain,
> could, of natural right, be claimed in exclusive and stable property. 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. [emphasis added] 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.


...


Society may give an exclusive right to the profits arising from them, as an
> encouragement to men to pursue ideas which may produce utility, but this may
> or may not be done, according to the will and convenience of the society,
> without claim or complaint from any body. Accordingly, it is a fact, as far
> as I am informed, that England was, until we copied her, the only country on
> earth which ever, by a general law, gave a legal right to the exclusive use
> of an idea. In some other countries it is sometimes done, in a great case,
> and by a special and personal act, but, generally speaking, other nations
> have thought that these monopolies produce more embarrassment than advantage
> to society; and it may be observed that the nations which refuse monopolies
> of invention, are as fruitful as England in new and useful devices.
>
> Considering the exclusive right to invention as given not of natural
> right, but for the benefit of society, I know well the difficulty of drawing
> a line between the things which are worth to the public the embarrassment of
> an exclusive patent, and those which are not.
>


Cheers,
Pranesh
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