Liberty of Contract and the Free Market Foundations of Intellectual Property

This paper considers intellectual property in the context of American constitutionalism and the emergence of free market capitalism and, more particularly, the role played by liberty of contract protected by the Constitution. It focuses on the interstate commercial marketplace and the U.S. copyright and patent systems as they developed during the 19th and early 20th centuries. Building on the Constitution’s framework and the work of the First Congress, the developments of the first several decades that followed established intellectual property as a form of exchangeable capital in a competitive interstate commercial marketplace. Although often overlooked, the protections accorded to copyrights and patent rights proved particularly conducive to free market economics, and they performed an important role in advancing art and innovation in the United States during the first 150 years under the Constitution.

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