Wayne Crews and Adam Thierer
Debates over the nature and scope of intellectual property law are centuries old, yet “new” at the same time. Over 200 years ago, America's founders struggled with the issue of intellectual property (IP) protection when they were authoring the Constitution. They arrived at a delicate balancing act contained in Article 1, Section 8, Clause 8, which gave Congress 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.”
Although inclusion of this line in the Constitution was an important sign that the founders believed strong utilitarian reasons existed for extending temporary legal protections to artistic and scientific creations, the language of this brief clause did not answer specific questions regarding such matters as the length of protection for various artistic or scientific creations, or what “fair use” or “prior art” was to mean, for example. Consequently, two centuries of legal wrangling have ensued as legislators, regulators, and jurists struggled to determine how best to achieve that balance.
Practically speaking, balancing has always been a messy process. Lengths of copyright and patent protection have always varied (although they have continuously expanded over time), and “fair use” and “prior art” have always been remarkably amorphous terms open to endless subjective interpretations and determinations. This has resulted in incessant bickering between creators and users.
Today in America, and indeed throughout the world, those ongoing tensions have seemingly reached a boiling point. In fact, it is fair to say that the debate over IP protection has become more contentious than ever before. There is increased awareness of the importance of the issue to both the creative community and the user community as the radical winds of technological change blow