How James Madison Laid The Foundation of American IP Regulation

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IP in America: How James Madison Laid the Foundations

Like in many countries, the history of Intellectual Property protection in the United States was a long process that reveals the characteristics of a nation and her people. Some of the “Founding Fathers” have had their respective brushes in establishing national IP legislation. First US President George Washington called for it, the succeeding Jefferson was initially skeptical, but it was the fourth President, James Madison who laid the key bricks to modern IP protection as Americans know it today.

British Laws on IP

The first applicable IP protection laws on American soil came during British rule, with the enactment of the 1623 Statute of Monopolies. This act banned the practice of monopolies by monarchs, with the notable exception of granting patents. After the United States achieved independence in 1776, most of the thirteen states still had some form of Patent protection. However, there wasn’t a standardized nationwide regulation because the Articles of Confederation did not give the Continental Congress the power to pass national legislation. This would be one of the major roadblocks to the establishment of national IP protection in the USA.

The idea of IP protection was a hotly contested topic amongst America’s leading figures. Some, like George Washington and James Madison, were strong proponents of the idea, while others were dismissive. Ironically, Benjamin Franklin and Thomas Jefferson, the two Founding Fathers who were inventors themselves, disliked the notion of IP protection. In his autobiography, Franklin wrote, “As we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.” Jefferson echoed similar sentiments, as he initially believed that Intellectual Property was a form of unjust monopoly.

States IP Laws and the Path To Progress

As public demand for IP legislation began to rise, Congress put together a specialized committee in response with James Madison among its members. This committee proposed a resolution that recommended states pass copyright statutes that would protect an author’s work for up to fourteen years. On May 2, 1783, this resolution was approved by Congress and resulted in the codification of state-based IP systems. Despite this, national-level legislation did not arrive until the development of the US Constitution.

IP Clause in The Constitutional Convention 

James Madison understood that the Constitutional Convention was a pivotal opportunity to implement a nationwide IP protection system. During the Convention, Madison submitted a proposal that Congress should have the power to secure literary authors copyrights for a limited time. On the same day, Governor Charles Pickney also submitted a similar proposal involving IP. His proposal involved giving Congress the power to secure to authors exclusive rights for a limited time. Both proposals were approved without much debate, and were subsequently cemented in the Constitution as Article I, Section 8, Clause 8 – the Patent and Copyright Clause.

Finally, Congress could establish nationwide legislation for an IP Protection system. Not long after the Constitutional Convention, the Patent Act of 1790 was signed into law on April 10, 1790. Followed by the Copyright Act of 1790, which was signed on May 31, 1790. The implementation of these laws is monumental for American history, as it ushered in a new era of invention, growth and creativity.

Madison’s efforts were the critical foundation to modern IP Protection in the US. Although revisions and additions would come in the subsequent years, the core tenets and basic concepts remain the same as those he established. Lastly, Madison’s contribution to IP went beyond legislature, as he also successfully convinced Thomas Jefferson of the value of IP protection. He argued that while Patents and Copyrights are indeed a form of monopoly, he believed it was ultimately fruitful for progressing society. In 1788, he wrote to Jefferson: “With regard to monopolies they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced?… It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.” By 1790, Jefferson would have a role in the Patent Office as America’s first patent commissioner. During his tenure, much of his opinions became the standard for what deserves a Patent, thus crafting a profound influence on the contemporary patent review process.


As consultants, we agree wholeheartedly that Patents and IP in general serve to benefit not only individuals, but society as a whole. We are proud to have worked with many brilliant innovators over the years.

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