Patent and Copyright Clause

The Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries....

Article I, Section 8, Clause 8

There is little direct evidence about the Patent and Copyright Clause's original meaning. The clause neither represented a legal tradition of great historical and practical significance to the Framers, unlike the availability of habeas corpus (see Article I, Section 9, Clause 2), nor was it one of the great structural innovations of the Constitution that attracted so much attention because of its gravity and novelty. Rather, the clause appears to have been largely an afterthought.

What little direct evidence we have about the circumstances of the clause's adoption has been of little help in resolving the disputes that have arisen, many of them quite recently, over its meaning. The clause was the subject of little debate during the Constitutional Convention, nor was it a major topic of discussion during the ratification debates. James Madison, in his wrap-up of "miscellaneous powers" in The Federalist No. 43, devoted only a single paragraph to the clause, justifying it both on the need to provide a national, uniform standard of intellectual property regulation as well as on the merits of the protection itself. "The copy right of authors," Madison wrote, "has been solemnly adjudged in Great Britain to be a right at Common Law. The right to useful inventions seems with equal reason to belong to the inventors." On this point Madison was mistaken; the House of Lords had decided in 1774 that copyright was not a common-law right, and invention patents had always been granted as a matter of crown or parliamentary discretion. In the very same breath as he extolled a natural-rights view of intellectual property, however, Madison also struck upon an incentives-based approach, justifying intellectual property regulation by its contribution to the public, as well as private, benefit. Madison concluded, "The public good coincides in both cases with the claims of individuals." He did not address the question of what to do in cases in which the public's good is not served by extending intellectual property rights.

In the end, no one appears to have objected seriously to the clause. George Mason and Thomas Jefferson (privately to Madison), along with a few other Anti-Federalists, raised concerns over the granting of state-sanctioned monopolies, which the Framers certainly disfavored as a general matter. But no one took the clause to authorize federal trade monopolies, and such objections were rebuffed by Federalists (in Jefferson's case by Madison himself) by reference to the value of granting copyright and patents and the need for national uniformity, which no one appears to have questioned.

The clause's text has been of limited help in resolving modern disputes over its meaning. Although some commentators have developed complex textual arguments about the clause, courts have been wary of applying the many limits potentially to be mined from its wording. In fact, with one early exception, the Court has deferred to Congress's view of its own powers under the clause. For example, in Eldred v. Ashcroft (2003), the Court upheld not only Congress's extension of the duration of copyrights to almost five times what it was in the 1790 copyright act, it also ruled that the requirement that copyrights be for "limited Times" did not prevent Congress from extending the copyright term for a work already under protection. The Court's rationale was largely based on historical practice. The exception was the In re Trade-Mark Cases (1879), in which the Supreme Court held that the clause did not provide authority for federal trademark legislation. Even that limit was eventually circumvented by Congress's use of the commerce power as authority for trademark legislation.

The Court has, nevertheless, shed light on some of the clause's terms. In Burrow-Giles Lithographic Co. v. Sarony (1884), the Court held that protection for photographs was within the clause even though the clause limits copyright to "Writings" and "Authors," partly because the first Congress granted copyright protection to other graphical works (such as maps and charts) and partly because the Court decided that "author" was more accurately defined as "originator" rather than "writer." The Court later extended this logic to allow protection for sculptures as well.

Other statements of the Court have suggested intrinsic limits to the clause. Thus, in Graham v. John Deere Co. (1966), the Court declared that Congress may not grant patents "without regard to the innovation, advancement or social benefit gained thereby" or "whose effects are to remove information from the public domain or to restrict free access to materials already available." More generally, it concluded that the patent system as adopted must "promote the Progress of...useful Arts." In Feist Publications, Inc. v. Rural Telephone Service Co. (1991), the Court stated that because the clause permits copyright protection only for creative works, facts cannot be copyrighted. But neither Graham nor Feist involved challenges to Congress's power; neither case required the Court to apply the limits it had found in the clause. The Court has frequently repeated its statement in Graham that "[t]he clause is both a grant of a power and a limitation," but at the same time it has explained that "it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives." Eldred v. Ashcroft.

It would seem that the courts would not approve of a facially perpetual grant, although many would argue that the current copyright term is already functionally equivalent to perpetual. More problematical are situations in which Congress either has granted or may grant exclusive rights to items that have up until now been considered to be outside the clause's traditional reach, such as database protection, protection for inventions not reaching the standard for patentability, or renewed protection for some works that have fallen into the public domain.

It is possible that, given the strongly deferential approach in Eldred, the Court will permit some of these new grants under the clause when it finally has to confront them, particularly if Congress supports them with thoughtful inquiry and findings. Nevertheless, proponents of such measures might rely on constitutional powers unencumbered by the Patent and Copyright Clause's many limitations. Two have sprung to the forefront: the power to regulate interstate commerce and, because some of these new grants are intended to bring the United States into compliance with international intellectual property conventions, the treaty power. Courts have so far approached the problem with caution, finding authority in other parts of the Constitution for Congress to grant exclusive rights but in part because they found that, while the Patent and Copyright Clause did not authorize the grants, they were nonetheless consistent with it. The issue is still being litigated and is far from settled.

Just as proponents of broader exclusive rights have looked to other parts of the Constitution, so too have their opponents. In Harper & Row Publishers, Inc. v. Nation Enterprises (1985), the Court acknowledged the possibility that copyright legislation might result in so heavy a burden on speech as to run afoul of the First Amendment. So far, however, the Court has held that copyright in its current form presents, on its face, no First Amendment problem. With the ever-increasing importance of information to the economy, it is safe to say that constitutional challenges to intellectual property laws will become more frequent.

Profile photo of Thomas B. Nachbar
Thomas B. Nachbar
Professor of Law
Senior Fellow, Center for National Security Law
University of Virginia School of Law