Tom Bell: “Intellectual Privilege: Copyright, Common Law, and the Common Good”

May 5

I am an intellectual property “skeptic,” which means I doubt very much that copyright and patents are really property at all. Nor does the Constitution identify these rights as property. Indeed, although Congress is empowered to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” it has no duty to do so. Now comes Tom Bell to tell us in his new book, Intellectual Privilege: Copyright, Common Law, and the Common Good, that these statutorily created rights are more accurately described as “intellectual privileges.”

Here is how the book is described:

A consensus has recently emerged among academics and policymakers that US copyright law has fallen out of balance. Lawmakers have responded by taking up proposals to reform the Copyright Act. But how should they proceed? This book offers a new and insightful view of copyright, marking the path toward a world less encumbered by legal restrictions and yet richer in art, music, and other expressive works.

Two opposing viewpoints have driven the debate over copyright policy. One side questions copyright for the same reasons it questions all restraints on freedoms of expression, and dismisses copyright, like other forms of property, as a mere plaything of political forces. The opposing side regards copyrights as property rights that deserve—like rights in houses, cars, and other forms of property—the fullest protection of the law.

Each of these viewpoints defends important truths. Both fail, however, to capture the essence of copyright. Intellectual Privilege reveals copyright as a statutory privilege that threatens our natural and constitutional rights. From this fresh perspective comes fresh solutions to copyright’s problems.

You can read the Introduction here.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law (Oxford, 2d. ed. 2014).
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