Randolph J. May and Seth L. Cooper (The Free State Foundation and The Free State Foundation) have posted The 'Reason and Nature' of Intellectual Property: Copyright and Patent in The Federalist Papers on SSRN. Here is the abstract:
Congress’s power to secure copyright and patent is expressly granted in the U.S. Constitution’s Article I, Section 8 Intellectual Property Clause. It confers on Congress a power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries." In order to better grasp the meaning of this power and the rights it is designed to secure, attention undoubtedly should be paid to that repository of American constitutionalism widely regarded to be second only to the Constitution: namely, The Federalist Papers.
Such attention to The Federalist Papers is not merely a matter of historical interest, although the history is certainly interesting. Rather, it is a matter of enhancing our present day understanding of why our Founders thought copyrights and patents important and deserving of protection in our Constitution. James Madison, writing in the guise of "Publius" in Federalist No. 43 provided that work’s lone direct reference to Congress’s power to protect intellectual property rights.
This paper explores what Federalist No. 43 has to say about IP rights, and the relationship of this particular number to the theory of American constitutional government contained in other Federalist Paper numbers. The paper is the fifth in a series exploring foundational principles of intellectual property rights.
