Thomas Jefferson to Isaac McPherson on the Nature of ‘Intellectual Property’

13 Aug. 1813 - Writings 13:333–35

It has been pretended by some, (and in England especially,) that inventors have
a natural and exclusive right to their inventions, and not merely for their own
lives, but inheritable to their heirs. But while it is a moot question whether
the origin of any kind of property is derived from nature at all, it would be
singular to admit a natural and even an hereditary right to inventors. It is
agreed by those who have seriously considered the subject, that no individual
has, of natural right, a separate property in an acre of land, for instance. By
an universal law, indeed, whatever, whether fixed or movable, belongs to all
men equally and in common, is the property for the moment of him who occupies
it, but when he relinquishes the occupation, the property goes with it. Stable
ownership is the gift of social law, and is given late in the progress of
society. It would be curious then, if an idea, the fugitive fermentation of an
individual brain, could, of natural right, be claimed in exclusive and stable
property. If nature has made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power called an idea,
which an individual may exclusively possess as long as he keeps it to himself;
but the moment it is divulged, it forces itself into the possession of every
one, and the receiver cannot dispossess himself of it. Its peculiar character,
too, is that no one possesses the less, because every other possesses the whole
of it. He who receives an idea from me, receives instruction himself without
lessening mine; as he who lights his taper at mine, receives light without
darkening me. That ideas should freely spread from one to another over the
globe, for the moral and mutual instruction of man, and improvement of his
condition, seems to have been peculiarly and benevolently designed by nature,
when she made them, like fire, expansible over all space, without lessening
their density in any point, and like the air in which we breathe, move, and
have our physical being, incapable of confinement or exclusive appropriation.
Inventions then cannot, in nature, be a subject of property. Society may give
an exclusive right to the profits arising from them, as an encouragement to men
to pursue ideas which may produce utility, but this may or may not be done,
according to the will and convenience of the society, without claim or
complaint from anybody. Accordingly, it is a fact, as far as I am informed,
that England was, until we copied her, the only country on earth which ever, by
a general law, gave a legal right to the exclusive use of an idea. In some
other countries it is sometimes done, in a great case, and by a special and
personal act, but, generally speaking, other nations have thought that these
monopolies produce more embarrassment than advantage to society; and it may be
observed that the nations which refuse monopolies of invention, are as fruitful
as England in new and useful devices.

Considering the exclusive right to invention as given not of natural right, but
for the benefit of society, I know well the difficulty of drawing a line
between the things which are worth to the public the embarrassment of an
exclusive patent, and those which are not. As a member of the patent board for
several years, while the law authorized a board to grant or refuse patents, I
saw with what slow progress a system of general rules could be matured.