This paper is part of a series of papers exploring various facets of the constitutional foundations of intellectual property law. In American constitutionalism the Antebellum era is important not for staking out new principles, but for developing and applying those principles already established in the written Constitution. Generally considered the period from before the Civil War back to the War of 1812, the Antebellum era saw the furtherance and consolidation of the Founding era’s solicitude for protection of individual private property rights. Constitutionalism in the Antebellum era is particularly important for building upon the Constitution’s foundational concepts of copyright and patent. In the time between the War of 1812 and the Civil War, the importance of protecting intellectual property (IP) rights was widely perceived and appreciated. As a result, the Antebellum era was a period of advancement for the protection of IP rights.
By the early 1800s, protection of copyright and patent rights had become established concepts within the American constitutional order. Article I, Section 8 of the US Constitution included the IP Clause, empowering Congress to guarantee to authors and inventors the exclusive rights to the proceeds of their writings and inventions for limited periods. The First Congress enacted the Copyright and Patent Acts of 1790. Subsequent Congresses made minor amendments to the federal patent registration process and expanded copyright protection to historical prints, etchings, and engravings in 1793 and 1802, respectively. Authors and inventors began registering their writings and inventions under the new laws. And courts of law opened their doors to the first copyright and patent infringement lawsuits.
Over the next half-century, American constitutional concepts of copyright and patent protection were reinforced and expanded. Following in the thought paths of Founding era predecessors, prominent Antebellum era thinkers overwhelmingly regarded copyrights and patents in light of natural rights and property rights principles. According to this view, persons are by nature entitled to the fruits of their labor – that is, to their property. Government exists to safeguard individual rights to acquire, use, and transfer property according to just and equal laws.
May, Randolph J and Cooper, Seth L, Reaffirming the Foundations of IP Rights: Copyright and Patent in the Antebellum Era (November 20, 2014).