The Public Contract Basis of Intellectual Property Rights

Property rights and contracts rights share an inseparable connection in American constitutionalism. One of the basic premises of America’s constitutional order is that all people have a natural right to keep, use, and enjoy the fruits of their labors. We call those fruits property, where the labors result in the creation of tangible physical objects or non-tangible ones like writings or inventions.

Patent rights and copyrights are secured by a contract between the federal government and inventors and creative artists. Contracts between the government and inventors and creative artists are established under federal law and according to the specifications of novel and useful patent applications or the contents of registered original works. Public contracts secure to inventors and creative artists exclusive rights, for set terms of years, to the use of inventions and reproduction of creative works. Those exclusive rights allow inventors and creative artists or their assigns to retain the financial rewards for their intellectual labors.

A deeper respect for he contract principles underlying IP rights actually reinforces their connection with natural rights. Properly understood, principles of contract, reflected in both the social compact and in public contracts, form a continuous link between natural rights and intellectual property protections. The contract basis for intellectual property rights heightens the federal government’s obligations to protect those rights. By entering into public contracts with authors and inventors the federal government must ensure what Marshall described in Grant v. Raymond as a “faithful execution of the solemn promise made by the United States.”

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