Crosbie Fitch: The US constitution does not grant Congress the power to create copyright
Undoubtedly, copyright was attractive to printers in many states prior to 1787. Madison himself was a fan.
However, that so many were aware of this monopoly should make you wonder why the Constitution didn’t explicitly empower Congress to grant it, especially when Jefferson suggested later to Madison to write that “Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding — years, but for no longer term and for no other purpose.” http://www.monticello.org/site/research-and-collections/patents
All knew full well the difference between rights and monopolies. (See the Declaration of Independence http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence). And, therefore, all knew full well the difference between securing an individual’s rights, and granting monopolies such as were ‘enjoyed’ in England. This is why Congress was empowered to GRANT Letters of Marque, but to SECURE the author’s exclusive right.
Madison was ethically obliged to recognise only the rights people were born with, and to only empower Congress to secure them – not to abridge them. This is why the clause is worded as it is. It would not have been ratified had it explicitly empowered Congress to GRANT monopolies.
To understand just how antithetical monopolies were you should read http://truth-out.org/index.php?option=com_k2&view=item&id=377:unequal-protection-jefferson-v ersus-the-corporate-aristocracy in order to see why Madison couldn’t empower Congress to grant them (however much he wanted to) and the most he could do was put a clause in that he might later insinuate empowered the granting of copyright – that he could pretend secured the author’s exclusive right to their writings (against copying by burglars) rather than as it actually did, annulled the people’s right to copy (the writings they had purchased).
Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:
“It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few… They… consequently are instruments of injustice.
The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.”
- Crosbie Fitch
Full Explanation found here: http://culturalliberty.org/blog/index.php?id=289