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Thomas Jefferson: Intellectual Property Rights Populist
Thomas Jefferson’s status as one of America’s leading polymaths is well-known. Less well-known is his role in the development of an American framework for intellectual property rights. Throughout the history of the United States, arguably no single individual has demonstrated the breadth of experience and knowledge concerning the diverse, and often competing, perspectives on balancing intellectual property rights of ownership, access, and use that Jefferson developed. The populist vision of intellectual property that he embraced, based on his experience, remains valuable today.
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Jefferson had a thorough understanding of the competing interests associated with intellectual property rights. A founding members of the U.S. Board of Arts, Jefferson played a direct role in awarding the first American patents. The Board of Arts eventually evolved into the U.S. Patent and Trademark Office, and in his capacity as the most active member of that first Board, Jefferson served, in effect, as America’s first patent examiner. Believing in the limited use of patents, he feared that the monopoly nature of patents interfered with rapid application of innovations into useful functions. He sought to award patents only to unique and innovative inventions. On the Board, he learned the difficult challenges associated with determining which inventions merited grant of patent rights.
A guiding light in science at the time, Jefferson understood the importance of preserving accessibility of knowledge and information to facilitate research, education, and innovation. A long-time president of the American Philosophical Society, the leading scientific organization in the United States at that time, he was active in America’s scientific community. He cherished his membership in that community, and participated in numerous knowledge networks of his time. He firmly believed in the power of those networks to enhance knowledge, foster innovation, and address effectively difficult technical challenges. He opposed the use of legal barriers, including intellectual property rights, which interfered with the sharing of information and knowledge.
Jefferson experienced the frustration associated with the use of intellectual property rights to restrict access to innovations. With other mill operators of his time, he was involved in a patent dispute against one of America’s leading inventors, Oliver Evans. Evans obtained a patent for technology using water to power mill operations. He enforced that patent against many mill operators, including Jefferson. From this experience, Jefferson understood the frustration of technology users confronted by activist patent holders. Ironically, it was his Board of Arts that granted Evans the patent.
A vision of intellectual property rights that differed from Jefferson’s ideas developed in his time. It viewed intellectual property rights as economic assets, distinct from the products they enabled. Jefferson did not accept that perspective. For Jefferson, inventors should be free to manufacture and sell products based on their work, permitting them to profit if their inventions improved the quality of the products they sold. Inventors would succeed to the extent that they effectively integrated their inventions into popular products. He did not believe that inventors should benefit from denying access to innovations.
In contrast, inventors such as Oliver Evans made the process of invention a source of commercial revenue, distinguishing that process from the manufacture and sale of final goods. They were in the business of inventing, treating their work as commercial assets to be licensed to others, for profit. They chose not to manufacture and sell their own products, opting instead to use patent law to require others to pay them in exchange for the right to incorporate their inventions into their products. This philosophy of intellectual property as proprietary economic asset grew dominant. Yet, recent initiatives and trends highlight some of the potential weaknesses associated with that vision. For example, copyright-law conflicts that involve digital media file sharing and open source software, as well as patent controversies over ownership of genetic sequences, underscore the continuing struggle to balance proprietary control over intellectual property with essential rights of access and use.
As we consider moderating our strongly proprietary vision of intellectual property, Jefferson’s more nuanced perspective on those rights has much to offer us. Perhaps the key lesson from his populist vision is the recognition that those rights are means to an end, not the end itself. We establish and enforce intellectual property rights in an effort to advance the public interest. Those rights are tools to help foster innovation, economic development, and the public welfare. Jefferson never lost sight of the fact that intellectual property rights should be enforced in ways that serve the entire public, not only the owners of that property. He insisted that the rights of creators of intellectual property must always be balanced with public rights of access and use. That is a principle we should never forget.
Jeffrey Matsuura is an attorney with the law firm, the Alliance Law Group, specializing in technology law. The author of six books on technology law and policy, his most recent book, Jefferson vs. the Patent Trolls: A Populist Vision of Intellectual Property Rights, was published in 2008 by the University of Virginia Press.
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