The Copyright Clause (also known as the Intellectual Property Clause, Copyright and Patent Clause, or the Progress Clause) describes an
enumerated power
The enumerated powers (also called expressed powers, explicit powers or delegated powers) of the United States Congress are the powers granted to the federal government of the United States by the United States Constitution. Most of these powers ar ...
listed in the
United States Constitution (
Article I, Section 8, Clause 8).
The clause, which is the basis of
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
laws in the United States and specifically
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
and
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...
laws, states that:
History
On August 18, 1787, the Constitutional Convention was in the midst of a weeks-long stretch of proposals to establish what would become the enumerated powers of the
United States Congress
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...
. Three such proposals made on that day addressed what are now lumped together under
intellectual property rights
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
. One, by
Charles Pinckney Charles Pinckney may refer to:
* Charles Pinckney (South Carolina chief justice) (died 1758), father of Charles Cotesworth Pinckney
* Colonel Charles Pinckney (1731–1782), South Carolina politician, loyal to British during Revolutionary War, fa ...
was "to secure to authors exclusive rights for a limited time". The other two were made by
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for h ...
, who had previously served on a committee of the Congress established under the
Articles of Confederation which had encouraged the individual states to adopt copyright legislation. Madison proposed that the Constitution permit Congress "to secure to literary authors their copyrights for a limited time", or, in the alternative, "to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries".
[William F. Patry, ''Copyright Law and Practice'' (1994).]
Both proposals were referred to the
Committee of Detail
The Committee of Detail was a committee established by the United States Constitutional Convention on July 24, 1787, to put down a draft text reflecting the agreements made by the convention up to that point, including the Virginia Plan's 15 re ...
, which reported back on September 5, 1787 with a proposal containing the current language of the clause. No record exists to explain the exact choice of words selected by the Committee on Detail, whose task was essentially no more than creating a draft Constitution by arranging the proposals that had been made into the most appropriate language. On September 17, 1787, the members of the Convention unanimously agreed to the proposed language, without debate, and this language was incorporated into the Constitution.
Effect
The clause actually confers two distinct powers: the power to secure for limited times to authors the exclusive right to their writings is the basis for
U.S. copyright law
The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of thei ...
, and the power to secure for limited times to inventors the exclusive rights to their discoveries is the basis for
U.S. patent law
Under United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is new, useful, and non-obvious. A patent is the right to exclude others, for a limited ...
. Because the clause contains no language under which Congress may protect
trademark
A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from othe ...
s, those are instead protected under the
Commerce Clause
The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
. Some terms in the clause are used in archaic meanings, potentially confusing modern readers. For example, "useful Arts" does not refer to artistic endeavors, but rather to the work of
artisan
An artisan (from french: artisan, it, artigiano) is a skilled craft worker who makes or creates material objects partly or entirely by hand. These objects may be functional or strictly decorative, for example furniture, decorative art ...
s, people skilled in a manufacturing craft; "Sciences" refers not only to fields of modern scientific inquiry but rather to all knowledge.
The Copyright Clause is the only clause granting power to Congress for which the means to accomplish its stated purpose are specifically provided. The exact limitations of this clause have been defined through a number of
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
cases interpreting the text.
Furthermore, the clause only permits protection of the writings of authors and the discoveries of inventors. Hence, writings may only be protected to the extent that they are original, and "inventions" must be truly inventive and not merely obvious improvements on existing knowledge. The term "writings of authors" appears to exclude non-human authorship such as painting by chimpanzees and computer code written by programmed computers, but the issue has not been tested in litigation.
Although perpetual copyrights and patents are prohibited—the language specifies "limited times"—the Supreme Court has ruled in ''
Eldred v. Ashcroft'' (2003) that repeated extensions to the term of copyright do not constitute a perpetual copyright. In that case, the United States Supreme Court rejected a challenge to the
Sonny Bono Copyright Term Extension Act
Sonny is a common nickname and occasional given name. Often it can be a derivative of the English word "Son", a name derived from the Ancient Germanic element *sunn meaning "sun", a nickname derived from the Italian name Salvatore (especially in N ...
, also known pejoratively as the "Mickey Mouse Protection Act."
[Se]
A Platonic Dialogue on ''Eldred v. Ashcroft''
. Petitioners in that case argued that successive retroactive extensions of copyright were functionally unlimited and hence violated the ''limited times'' language of the clause.
Justice Ginsburg
Joan Ruth Bader Ginsburg ( ; ; March 15, 1933September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by Presiden ...
, writing for the Court, rejected this argument, reasoning that the terms provided by the Act were limited in duration and noted that Congress had a long history of granting retroactive extensions.
See also
*
United States Constitution
*
Copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
*
United States copyright law
The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of the ...
*
United States patent law
Under United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is new, useful, and non-obvious. A patent is the right to exclude others, for a limited ...
*''
Stanford v. Roche
''Stanford University v. Roche Molecular Systems, Inc.'', 563 U.S. 776 (2011), was a United States Supreme Court case in which the Court held that title in a patented invention vests first in the inventor, even if the inventor is a researcher at a ...
''
References
Further reading
*
*Michelle R Paz
*
*
Thomas Jefferson letters relating to Copyright Clause
{{DEFAULTSORT:Copyright Clause Of The United States Constitution
Clauses of the United States Constitution
Intellectual property law
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