The Text and History of the Patent and Copyright Clause of the U.S. Constitution
*By Kristin Bergman, ConSource Blogger
Much of intellectual property law as we know it today is statutory. However, though rarely cited, both patent and copyright law can be traced back to the Patent and Copyright Clause (also known as the Intellectual Property Clause, Progress Clause, and Science and Arts Clause) of the U.S. Constitution. Under this Clause, Congress has the power “[t]o 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.” Though it may seem unusual to our modern understanding of the language, “science” in fact referred to the broad spread of knowledge (and therefore promoted copyright law), while the “useful Arts” meant the work of artisans, which we now think of as manufacturing and technology (hence patent law).
Drafting and Ratification of the Patent and Copyright Clause
During the Constitutional Convention on August 18, 1787, three proposals were put forth to protect intellectual property—two by James Madison and one by Charles Pinckney.
Pinckney’s proposal, which focused on copyright protection, stated “To secure to Authors exclusive rights for a certain time.” Particular to this proposal was the “exclusive” language, which made its way into the final clause. Madison, in turn, had two proposed clauses, one for copyright and one for patents. The former resembles Pinckney’s proposal, though it may be read more narrowly: “To secure to literary authors their copyrights for a limited time.” Madison’s other proposed clause was the only proposed language that relates to invention. He suggested adding: “To encourage by premiums & provisions, the advancement of useful knowledge and discoveries.”
The Committee of Eleven, better known as the Committee of Detail, combined and edited these proposals and put forth a new, joint Patent and Copyright Clause on September 5. The proposed language read, “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.” This language was approved unanimously, without debate, and remains the language we see included in the Constitution as ratified.
When the Constitution was sent to the states for ratification, the Patent and Copyright Clause in particular was only addressed in two states’ conventions: Pennsylvania and North Carolina. In Pennsylvania, commentary emphasized the necessity of national recognition of copyright protection by Congress rather than a single state’s protection. In a similarly pro-ratification comment in response to free speech concerns, one proponent in North Carolina noted the long history of copyright protection in England and the importance of such protection in the creation of many valuable writings. Aside from these limited discussions, as also seen at the Constitutional Convention, this Clause was not a point of contention.
The Founding Fathers on Intellectual Property
The idea of constitutional protection for intellectual property was generally accepted by the founding fathers. As already mentioned, lack of debate suggests it was not a point of contention, though there is some evidence that the founders exhibited some skepticism over intellectual property rights.
In the Federalist Papers, James Madison defends the Clause briefly and simply, stating:
The copyright of authors 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. The public good fully coincides in both cases, with the claims of individuals.
As he was likely not anticipating the critical reception of this Clause, Madison dedicates a single paragraph (out of all of the Federalist Papers) to address the Patent and Copyright Clause. Considered one of the miscellaneous powers, he notes that “[t]he utility of this power will scarcely be questioned.” Nevertheless, consistent with the rest of Federalist No. 43, Madison emphasizes logic and public good to make this provision as palatable as possible
Despite general acceptance, there was some hesitancy to protect intellectual property, perhaps best seen in Thomas Jefferson’s writings. In a letter in 1813, Jefferson wrote:
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… . 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.
Though statutory requirements for intellectual property protection would later address some of Jefferson’s concerns, this concern remains alive in critics of intellectual property protection (particularly protection that is long in duration).
Madison and Jefferson also engaged in discussion about the potential dangers of granting monopolies. Both agreed that monopolies are a great nuisance, yet, perhaps uncomfortably, concluded that they may be appropriate to encourage intellectual property development. In a letter to Jefferson, Madison asked, “But is it clear that as encouragements to literary works and ingenious discoveries, [monopolies] are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases the right to the public to abolish the privilege at a price to be specified in the grant of it?” Jefferson replied to this concern, stating, “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 no other purpose.” Essentially, the two sought to limit the scope and duration of protection (as was later accomplished by the Copyright Act) while still recognizing the importance of granting a temporary monopoly to incentivize creation.
Key Supreme Court Cases Interpreting the Clause
In 1790, the Copyright Act and Patent Act were enacted by Congress. Unsurprisingly, then, much litigation over intellectual property law over the last few centuries has been a matter of statutory interpretation. However, that is not to say that the Supreme Court has been silent over matters of constitutional interpretation, occasionally addressing the Patent and Copyright Clause’s text and history to resolve intellectual property controversies. These cases highlight the Supreme Court’s approach in interpreting this Clause.
- Burrow-Giles Lithographic Co. v. Sarony (1884): The Supreme Court extended copyright protection to photographs in this copyright infringement case in part by focusing on the language of the Clause and the Framers’ understanding of copyright protection. Rather than interpreting “writings” or “author” narrowly, the Court adopted an understanding of “author” as “originator,” and found “writings” to include many tangible forms “by which the ideas in the mind of the author are given visible expression.”
- In Re Trade-Mark Cases (1879): In these consolidated cases, Congress attempted to regulate trademarks under the Patent and Copyright Clause. However, as the Court noted, “Any attempt … to identify the essential characteristics of a trade-mark with inventions and discoveries in the arts and sciences, or with the writings of authors, will show that the effort is surrounded with insurmountable difficulties.”  As trademarks ordinarily have no relation to invention or discovery—they grow out of considerable use and are not the result of fruits of intellectual labor and originality—the Court held that they cannot be authorized under the Patent and Copyright Clause. 
- Graham v. John Deere Co. (1966): Though decided nearly two centuries after the Constitution was ratified, the Supreme Court emphasized a return to the Clause’s stated purpose in this patent infringement case. After providing background on the early history and policy behind the United States’ approach to patent law, the Court reaffirmed that the patent system must “promote the Progress of … useful Arts,” and therefore may only protect inventions which are new, useful, and promote human knowledge—consistent with Jefferson’s view of social utilitarianism. The Court used this conclusion to affirm the statutory nonobvious subject matter requirement for patent protection.
- Eldred v. Ashcroft (2003): In this relatively recent case, the Court reviewed Congress’s extension of existing copyright terms by twenty more years (such that the duration of copyright protection would reach nearly five times that which was extended in the 1790 Act). The Court held this did not violate the “limited Times” prescription of the Patent and Copyright Clause, noting that the Framers understood “limited” as we do today: “confined within certain bounds, restrained, or circumscribed.” The Court also asserted its limited role in interpreting the means by which the Clause should be enacted, stating, “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.”
 See Malla Pollack, What Is Congress Supposed to Promote? Defining ‘Progress’ in Article I, Section 8, Clause 8 of the U.S. Constitution, or Introducing the Progress Clause, 80 Neb. L. Rev. 754 (2002).
 Id. at ¶ 19; U.S. Const. art. I, § 8, cl. 8.
 See Edward C. Walterscheid, Inherent or Created Rights: Early Views on the Intellectual Property Clause, 19 Hamline L. Rev. 81 (1995).
 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).
 In Re Trade-Mark Cases, 100 U.S. 82 (1879).
 Graham v. John Deere Co., 383 U.S. 1 (1966).
 Eldred v. Ashcroft, 537 U.S. 186 (2003).