Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: us_1789

Commentary on the Intellectual Property Constitutional Clause 1789

Oren Bracha

School of Law, University of Texas

Please cite as:
Bracha, O. (2008) ‘Commentary on the Intellectual Property Constitutional Clause 1789', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The Making of the Clause

4. The Origins of the Clause

5. The Significance and Meaning of the Clause

6. References

1. Full title

The United States Constitution Intellectual Property Clause 1789

2. Abstract

A Clause of the United States Constitution vesting Congress with power to legislate in the field of copyright and patent. The commentary describes the events that led to the inclusion of the clause in the U.S. Constitution and discusses the information known about the intellectual origins of the clause. The commentary also describes the central status occupied by the clause in American intellectual property discourse and the historical development leading to it.

3. The Making of the Clause

Until 1787 all the legal developments in the field of copyright in the United States occurred on a local rather than a national level. Both ad hoc legislative grants and general copyright statutes were enacted by the various states and thus applied only within their jurisdictions. Moreover, the Articles of Confederation that defined the loose national power in the pre-Constitution era remained silent on the issues of copyright and patent. It is likely that under the Articles of Confederation the Continental Congress lacked power to legislate in this field.[1] The Continental Congress never ventured to enact any laws relating to patents or copyright. Indeed, it appears that members of the Continental Congress believed that the national legislature lacked such power. When the Continental Congress was petitioned in 1783 by agitators for copyright protection its appointed committee responded with enthusiasm declaring that "nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of the arts and commerce."[2] However, rather than taking any action itself, the Congress passed a resolution that strongly recommended the states to enact copyright laws.

During the 1780s the shortcomings of local protection for writings and technological innovations in the context of an emerging national market and culture were becoming apparent, at least to some. The efforts of Noah Webster (1758-1843) and others to secure state protection for their writings vividly demonstrated these shortcomings in the instance of copyright.[3] The contest before state legislatures between John Fitch (1743-1798) and James Rumsey (1743-1792) over protection for the steamboat invention and the troubles of other inventors did the same in the patent context.[4] In 1787, in preparation for the constitutional convention, James Madison (1751-1836) identified "the want of uniformity in the laws concerning naturalization & literary property," as one of the weaknesses of the Articles of Confederation's scheme of government.[5] Later, when he defended the Constitution in the Federalist, Madison observed that "[t]he states cannot separately make effectual provision for either" copyright or patent.[6] In 1787 F.W. Geyer observed that "a patent can be of no use unless it is from Congress, and not from them till they are vested with much more authority than they possess at this time."[7] As it happened, when in 1787 a new scheme of government for the nation was created during the constitutional convention in Philadelphia, in the form of the U.S. Constitution, it included a new federal power to legislate in the field of copyright and patent.

However, in his 1787 paper Madison also designated the issue of "literary property" as one of "inferior moment."[8] As far as we can tell the founding fathers did not see this issue as one of great importance and did not devote much thought or elaborate discussion to it or to the relevant clause of the Constitution. Copyrights and patents were not mentioned in the early proposals for a national governance scheme presented by various states.[9] A pamphlet written by Charles Pinckney (1757-1824) shortly after the convention is often interpreted as making the claim that the South Carolina plan, authored by Pinckney, included a proposed copyright power.[10] However, existing evidence does not support that contention.[11] The Congressional power to legislate in the field was neither mentioned in the first draft of the Constitution, reported by the Committee of Detail to the convention on August 6, 1787, nor in prior resolutions.[12] The issue made its first known appearance on August 18, almost three months after the convention began. On that day twenty additional powers for Congress were proposed. James Madison and Charles Pinckney proposed various powers related to patent and copyright. The convention's journal simply lists the proposed powers with no attribution or reasoning attached. In its relevant parts the journal states that it was proposed to vest in Congress the power:

"To secure to literary authors their copy rights for a limited time

To establish an University

To encourage by proper premiums and provisions, the advancement of useful knowledge and discoveries

.................................................................................................

To establish seminars for the promotion of literature and the arts and sciences

.............................................................................................

To grant patents for useful inventions

To secure to authors exclusive rights for a certain time

To establish public institutions, rewards and immunities for the promotion of agriculture, commerce trade and manufactures."[13]

There remains much obscurity as to the deliberative process that led to the adoption of the final clause, the Framers' intentions, as well as the reasons that motivated them to include the clause and the origins of its specific language and structure. There is even some uncertainty about the exact relevant powers suggested on April 18, 1787. Madison's original journal entry for that day[14] is inconsistent with both an amended version he pasted over it years later[15] and the convention's journal.[16] The original entry states that Madison proposed that day the power "[t]o secure to the inventors of useful machines and implements the benefits thereof for a limited time," a proposal that is not mentioned in the two other sources. Whether or not Madison suggested that power on the eighteenth of August, it seems clear that the various powers mentioned above relating to copyright and patent were proposed that day by Pinckney and Madison, and that out of these powers the final clause would be forged.[17] The proposals were referred to the Committee on Detail where none survived in their original form. Instead on the fifth of September the committee, of which Madison but not Pinckney, was a member recommended to adopt a congressional power:

"To promote the progress of science and useful arts by securing for limited times to Authors and Inventors the exclusive rights to their respective writings and discoveries."[18]

This was approved with no debate and became the Intellectual Property Clause of the Constitution.

During Ratification the Intellectual Property clause attracted almost as little attention and debate as it did during the Convention. The most famous attempt to justify the clause at this stage is James Madison's in the Federalist No. 43, where Madison wrote that:

"The utility of this power will scarcely be questioned. The copyright of authors has 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. The States cannot separately make effectual provision for either of the cases, and most of them anticipated the decision of this point by laws passed at the instance of Congress."[19]

Apparently Madison was scrambling for every available justification of Congress's new powers in the field, caring little about inaccuracies or possible inconsistencies.[20] It seems that Madison was familiar with the early British literary property cases, most importantly the 1769 Millar v. Taylor that recognized common law copyright.[21] By 1787, however, the House of Lords had already overturned Millar in Donaldson v. Becket and rejected the notion of common law copyright after publication.[22] Madison either did not know of that development or chose to ignore it. Alternatively, it is possible that Madison intended to refer to what became a common reading of the judicial opinions in Donaldson v. Becket, namely that the case stood for the proposition that the Statute of Anne limited a preexisting common law right.[23] Madison's argument in the Federalist also blends together indistinguishably individual-natural-rights arguments for patent and copyright with social-utilitarian justifications. All of these inaccuracies in Madison's argument were probably of little concern, since Madison was not writing a philosophical argument, but rather engaging in political rhetoric designed to justify and attain approval for the Constitution.

In only two instances was the clause mentioned in the state ratification debates. On November 28, 1787 during the ratification convention of Pennsylvania, Thomas McKean (1734-1817), Chief Justice of the Pennsylvania Supreme Court and a former President of the Continental Congress, stated that the copyright power:

"could only with effect be exercised by the Congress. For, sir, the laws of the respective states could only operate within their respective boundaries, and therefore, a work which has cost the author his whole life to complete, when published in one state, however it might there be secured, could easily be carried into another state in which a republication would be accompanied with neither penalty nor punishment - a circumstance manifestly injurious to the author in particular."[24]

In North Carolina James Iredell (1751-1799), later a Justice of the Supreme Court, argued that:

"the future Congress will have... authority to secure to authors for a limited time the exclusive privilege of publishing their work. This authority has long been exercised in England... and... such encouragement may give birth to many excellent writings which would otherwise have never appeared."[25]

Thus in those rare occasions where public justification of the clause was attempted, three recurring motifs emerged: the ineffectiveness of state copyright regulation, the English precedent, and the expected public utility of copyright and patent protection. As in the constitutional convention, there were no discussions or debates to be found from the ratification stage about the exact meaning, structure or intended operation of the clause. In June 1788 the Constitution was ratified, and in March 1789 the intellectual property clause went into effect.

4. The Origins of the Clause

The dearth of information about the creation of the clause and the deliberative process, if any, behind it are bound to make any explanation of its origin and the reasons for its inclusion in the Constitution incomplete. In terms of special-interest politics, there are several indirect clues or speculations indicating lobbying and possible influence on the Framers. Noah Webster's close proximity to the convention has led some to argue that he had a hand in the introduction of the copyright and possibly patent proposals.[26] Webster, however, was far from reticent about describing his involvement in copyright legislation and never hinted that he had anything to do with the clause. Another known fact is that the inventor John Fitch visited Philadelphia at the time of the convention and met with a few of the delegates. In fact during the week of August 20, 1787 Fitch demonstrated his steamboat to several delegates.[27] This was in the same week that the patent and copyright proposals first appeared on the convention's agenda and shortly before the final language of the clause was forged. Fitch, a veteran of both state lobbying for ad hoc patent grants and state-by-state competition with his rival the inventor James Rumsey, had an obvious stake in a national patent regime. Nevertheless, nothing is known about what happened during the demonstration and no other evidence links Fitch to the clause. On August 9, 1787 Tench Coxe (1755-1824) delivered a speech in Philadelphia before the Pennsylvania Society for the Encouragement of Manufactures and the Useful Arts. Coxe explicitly referred to the constitutional convention convened in the city and urged various methods for "encouraging manufactures," including "[p]remiums for useful inventions and improvements," and in particular "liberal rewards in land."[28] It has been argued that this appeal by Coxe may have influenced Madison's proposal two weeks later to vest Congress with the power "[t]o encourage by proper premiums and provisions, the advancement of useful knowledge and discoveries."[29] However, no direct evidence exists of such a connection.

More general public choice explanations of the creation of the intellectual property clause are scarce and tend to explain the shift from the state to the national level, rather than the inclusion of the specific powers involved in the Constitution and the lack of any significant opposition to them. The main argument in this vein contends that with the rise of a national market and patterns of economic activity, national protection increased in value while the worth of state protection decreased, resulting in overall support for a new national patent and copyright regime.[30]

While the exact reasons and motivations of the Framers remain obscure, it is possible to reconstruct much of the relevant intellectual, legal, and ideological background in which they were immersed and from which the clause emerged. There are three main relevant influences or background knowledge to which many of the Framers involved were exposed. First, many of the Framers had legal educations and were familiar with British law. It is plausible that many of them were exposed to some degree to British law, practice, and thought about patent and copyright. Madison's reference to the English common law on copyright in the Federalist as well as earlier references in the context of the Continental Congress resolution and the state enactments attest to such familiarity.[31] When considering the issue of encouraging learning and manufactures many of the Framers were probably thinking in terms of the familiar British concepts and practices.[32] Contemporary British thought conceptualized patents and copyrights as an exception to a general rule against monopolies and held that, so long as they were subjected to proper restrictions, copyrights and patents would serve the public good and therefore could be lawfully granted.[33]

A written exchange between Madison and Thomas Jefferson (1743-1826) shortly after the ratification of the Constitution demonstrates how Americans conceptualized the issue in the British terms of beneficial monopolies. Jefferson, who was absent from the convention due to his position as the American minister to France, wrote Madison that "it is better... to abolish... Monopolies, in all cases, than not to do it in any." He added that "[t]he saying there shall be no monopolies lessens the incitement to ingenuity, which is spurred on by the hope of a monopoly for a limited time; as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression."[34] Madison took exception:

"In 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? 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?"[35]

In reply, Jefferson, who now reluctantly accepted the congressional power to grant such monopolies, suggested that the future Bill of Rights would provide that "Monopolies may be allowed to persons for their own production in literature, and their own inventions in the arts for a term not exceeding __ years, but for no longer term, and for no other purpose."[36] This language never appeared in the Bill of Rights. Thus, despite their differences, the two men were thinking and talking about patent and copyright in similar terms, ones which were borrowed from the traditional British concepts surrounding intellectual property. Both perceived copyrights and patents as state granted monopolies that, despite the general aversion to monopolies, could be justified due to their public utility. The beneficial monopolies scheme appears to have been dominant among those of the American founding fathers who devoted thought to patent and copyright. At the same time, as shown by Madison's casual reference in the Federalist to common law copyright in England, concepts of copyright as a property right that were introduced and popularized in the British literary property debate were somewhat familiar to Americans, or, at a minimum were lurking in the background.[37]

Second, many of the Framers were also familiar with the patent and copyright practice of the states. By 1787 many of the states granted ad hoc legislative patents and copyrights[38] and the majority of them legislated general copyright statutes modeled after the British Statute of Anne.[39] Out of 55 delegates more than 40 were members of various branches of state governments, and it is likely that many of them had been exposed to those laws and practices.[40]

Third, some forty of the delegates were members of the Continental Congress in one of its incarnations.[41] The Continental Congress received various petitions on the subject of patent and copyright and although it never legislated in the field it issued an enthusiastic resolution that praised copyright protection and recommended its enactment by the states.[42] That may have been yet another influence on at least some of the delegates.[43]

These indirect influences, together with the sparse legislative history, constitute the extent of our knowledge of the Framers' intentions, motivations, and assumptions in regard to the clause. It appears, however, that the clause did not embody any significant departure from existing patterns and concepts. The intellectual property clause certainly did not directly create any rights. Nor did it require Congress to create such rights. It merely vested Congress with the power to create certain rights to authors and inventors subject to some restrictions. The main innovation of the clause, one alluded to by most contemporaneous public references to the clause, was the creation of a national power to legislate in this field. Aside from this shift to the national level, the clause did not clearly introduce any characteristic to patent or copyright protection that was markedly different from existing known practices. The concepts of authors, inventors, limited time exclusive monopolies and their use by government to encourage learning and technological innovation, were all familiar from the British and state context.

5. The Significance and Meaning of the Clause

The status of the intellectual property clause of the constitution in American law and culture is a paradoxical one: its rhetorical and practical significance stands in inverse relation to the amount of information known about it and about the considerations or intentions of its Framers. As discussed above, little is known about the events leading to the creation of the clause and about the exact intentions or deliberations of its Framers. Nevertheless, the intellectual property clause has attracted more scholarly attention and research than any other episode in the history of American copyright and patent. Similarly, the constitutional clause plays an important role in American intellectual property legal doctrine and in public and political debates in the field. Scholars and advocates tried to deduce meaning from the procedural history of phrasing the clause. The very silence characterizing this history - the lack of known debate and dissent in either the convention or ratification - was often pointed to as proof of general enthusiasm and consensus, although it is just as likely that it was an expression of lack of interest in a matter of "inferior moment."[44] Still others constructed elaborate interpretations on the basis of the text, "securing... exclusive rights" in the clause, finding this language to indicate that the Framers were motivated by a capacious understanding of patents and copyrights as securing preexisting natural rights.[45] Even the absence of the words "patent" and copyright" was pressed into service to show that the Framers' intended to exclude various restrictions and limitations that were routinely imposed on patent and copyright entitlements in their period.[46] While all of these were arguments of intellectual property maximalists who sought to use the clause in order to justify broad protection and oppose restrictions and limitations of intellectual property rights, in more recent years the pendulum has swung. Today it is more common to find intellectual property minimalists trying to use the clause to impose restrictions on intellectual property protection and fend off attempts to extend it[47] and intellectual property maximalists criticizing such attempts.[48] Thus for example, arguments attempting to cabin congressional expansion of intellectual property rights were based recently on both the "limited times" and "promote the progress"[49] language of the clause. In the case law the terms "authors," "inventors," and "writings" were all used to deduce threshold requirements for and limitations on copyright and patent rights.[50]

How did the clause, seen as insignificant at the time of its creation and obscured by lack of information, attain such a status? There are at least three overlapping explanations. First, given the dominant status in American culture and political discourse of the Constitution, a status that has been described as a "civic religion," the clause offers a lucrative opportunity for legitimation and justification.[51] Successfully grounding one's position in a particular intellectual property debate found in the Constitution likely results in substantial justificatory capital. A second and related factor is the popularity in American legal and political thought of an interpretive approach known as "originalism." This approach seeks to interpret and apply legal texts in general, and the Constitution in particular, according to the original intentions of the texts' framers, contemporaneous understandings and views, or some other variation of the concept of original meaning. In line with this perspective, the intellectual property clause embodies the supposed original meaning of copyright and patent in the United States. Third, and maybe most importantly, constitutional arguments based on the clause play a unique function within the dynamic of interest group politics that shapes intellectual property law. Such arguments, if successful, constitute "trump cards" that bind and circumvent the majoritarian legislative process. An interest group that managed to win a majority in the legislature could still be overpowered by another which managed to convince the courts to issue a favorable interpretation and application of the constitutional clause. The clause creates an alternative power center in the courts and often attracts those who are likely to be the losers of the intellectual property legislative process. For the same reason, debates over the meaning of the clause usually involve high stakes.

The intellectual property clause attained its current dominant status in a prolonged historical process that started soon after its creation. The rhetorical significance of the constitutional clause was identified early on, as witnessed by several hyperbolic and inaccurate attempts from the 1790s to claim that the Constitution created patent or copyright rights. For example, in 1792 Joseph Barnes, the son-in-law and associate of James Rumsey, argued that "each American citizen has a constitutional right to claim that his property in the product of his genius, should be secured by the National Legislature."[52] At the same time there were signs of early recognition that the clause, while vesting Congress with power, also restricts and limits its ability to legislate in the field. Thus when in April 1789 John Churchman (1753-1805) petitioned Congress a legislative privilege in his invention for determining longitude as well as funding for a Baffin's Bay expedition, [53] some expressed doubts about Congress's constitutional power in regard to the latter.[54] Later, a committee reported that the funding request "involves an inquiry into the Constitutional powers of Congress" that the committee was unwilling to undertake.[55] Similarly, when in March 1790 Tench Coxe sought support for his plan of land premium to introducers of new technology,[56] Madison expressed token support but observed that "the clause in the constitution which forbids patents for this purpose will lie equally in the way of your expedient."[57] In his 1790 Report on the Subject of Manufactures Alexander Hamilton (1757-1804) made a case for encouraging introducers of foreign technology. He also observed, however, that "there is a cause to regret that the competency of the authority of the National Government to the good that might be done, is not without question" and therefore recommended monetary bounties rather than patents.[58] It is plausible that Hamilton was referring here to what he saw as a widespread, though unfortunate belief, that Congress could not issue patents for imported technology under the intellectual property clause.[59] Thus from the early years of the new Constitution there appeared a common recognition that the intellectual property clause served not just as a grant of power but also as a limitation upon it, although there was no clear consensus on what those limitations were or on whether they could be bypassed by resort to other powers granted to Congress by the Constitution.

Throughout the nineteenth century invocations of the clause as a limitation on power continued. Early on it was the notion of patents to importers of known technology that attracted such observations. Recurring attempts to introduce such patents failed, often on the basis of constitutional objections. The original bill of the 1790 Patent Act was amended to exclude the possibility of patents of importation, very likely this was, as suggested by a letter from Thomas Fitzsimons (1741-1811) to Tench Coxe, due to "the Constitutional power being Questionable."[60] The correspondence between Madison and Coxe raised a similar view about the lack of congressional power by Madison.[61] In 1812 Chief Justice James Kent (1763-1847) in a New York appellate court opinion observed that Congress, unlike the states, was constitutionally precluded from granting patents of importation:

"Congress is authorized to grant patents only to the inventor of the useful art... [t]here cannot, then, be any aid or encouragement, by means of an exclusive right under the law of the United States, to importers from abroad of any useful invention or improvement."[62]

In his 1833 Commentaries, Justice Joseph Story (1779-1845) agreed and grounded the claim in the "authors and inventors" text of the clause.[63]

Legal doctrine on the general question of the extent of the limitations created by the clause tended to be shifting and ambiguous. On the one hand, there were statements such as the one by the Supreme Court in the 1843 McClurg v. Kingsland that "the powers of Congress to legislate upon the subject of patents is plenary by the terms of the Constitution, and as there are no restraints on its exercise, there can be no limitation of their right to modify them at their pleasure."[64] On the other hand, on occasion a court would use the clause to find and impose restrictions on congressional legislative power in the field, usually implicitly by way of interpretation. In Clayton v. Stone, for example, copyright protection was denied to a daily "price current" because "[t]he act in question was passed in execution of the power here given, and the object, therefore, was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them."[65] After the Civil War the use of the constitutional clause in the case law intensified especially in the copyright context. In the 1891 Higgins v. Keuffel the Supreme Court used a similar reasoning to that of Clayton v. Stone to deny copyright protection to labels.[66] In another group of cases courts used the constitutional reference to authors and writings to develop the originality requirement in copyright law.[67] The high watermark of the constitutionalization of copyright in this period was the Supreme Court's opinion in the Trade-Mark Cases.[68] In that opinion Justice Samuel Miller (1816-1890) struck down as unconstitutional the first federal trademark legislation. Miller rejected the claim that the congressional source of power to legislate the trademark statute emanated from the intellectual property clause because he found it impossible to reconcile "the essential characteristics of a trade-mark with inventions and discoveries in the arts and sciences, or with the writings of authors."[69] In particular it was the lack of any novelty, originality or intellectual labor requirement that for the court placed the trademark outside of the clause's grant of power.[70]

In the twentieth century this trend continued. The constitutional clause became a permanent part of doctrinal areas of both copyright and patent law, and some more elaborate doctrine had appeared. To mention just a few of the prominent cases in the field of patent, the Supreme Court in Graham v. John Deere Co. grounded the patentability requirement known as non-obviousness or inventive step of the invention in the constitutional clause mandate to Congress to "promote the Progress of... useful Art."[71] In the 1991 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. the Supreme Court traced copyright's originality requirement to the constitutional language of "authors" and "writings."[72] Recently, in a case that attracted much attention, a divided Supreme Court rejected a constitutional challenge to Congress's extension of the copyright term.[73] Constitutional arguments are routinely raised in American intellectual property cases and the constitutional layer seems to have become an important integral part of the field.[74] That is not to say that there is any general consensus about the meaning and role of the clause. Due to the high ideological and practical stakes involved, a heated debate rages on a variety of questions: the extent of the limitations laid by the clause and the legitimacy of courts' interference with congressional discretion on this basis; the exact parts of the clause's language that create limitations on legislative power and their exact meaning; the circumstances under which Congress may bypass the intellectual property clause limitations by turning to other sources of legislative power. Thus, more than two centuries after its creation the intellectual property clause plays an active and dominant role in the fields of patent and copyright, often in ways that its Framers did not anticipate or imagine.

6. References

Governmental Documents and Legislation

United Kingdom

Millar v. Taylor (1769) 4 Burr. 2302.

Donaldson v. Becket (1774) 4 Burr. 408.

United States

Baker v. Selden, 101 U.S. 99 (1879).

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1883).

Clayton v. Stone, 5 F. Cases 999 (S.D.N.Y. 1829).

Eldred v. Ashcroft, 537 U.S. 186 (2003).

Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. 499 U.S. 340 (1991).

Graham v. John Deere Co., 383 U.S. 1 (1966).

Higgins v. Keuffel, 140 U.S. 428 (1891).

Livingston v. Van Ingen, 9 Johns 505 (1812).

Martinetti v. Maguire, 16 F. Cases 920 (C.C.D.Cal. 1867).

Trade Mark Cases, 100 U.S. 82 (1879).

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"Symposium, Eldred v. Ashcroft: Intellectual Property, Congressional Power, and the Constitution." Loyola Los Angeles Law Review 36 (2003): 1-527

"Symposium, The Constitutionalization of Technology Law." Berkeley Technology Law Journal 15 (2000): 529-724

Waltrscheid, Edward C. The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo, N.Y.: W.S. Hein, 2002)

________."To Promote The Progress Of Science And Useful Arts: The Background And Origin Of The Intellectual Property Clause Of The United States Constitution," Journal of Intellectual Property Law 2 (1994): 1-56

________."Understanding the Copyright Act of 1790: The Issue of Common Law Copyright in America and the Modern Interpretation of the Copyright Power," Journal of the Copyright Society of the USA. 53 (2006): 313-353

Zimmerman, Diane Leenheer. "It's an Original!(?): In Pursuit of Copyright's Elusive Essence." Columbia Journal of Law and Arts 28 (2005): 187-212

[1] Edward C. Waltrscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo, N.Y.: W.S. Hein, 2002), 32-37; idem, "To Promote The Progress Of Science And Useful Arts: The Background And Origin Of The Intellectual Property Clause Of The United States Constitution," Journal of Intellectual Property Law 2 (1994): 1, 4-9.

[2] See Journal of the Continental Congress, Worthington C. Ford et al. eds. (Washington, D.C., 1904-37), 24:326-27; John P. Butler, comp., Index, The Papers of the Continental Congress, vol. 4, Quack-Zwole, (Washington: National Archives, 1978), 91; (No. 24); us_1783c.

[3] Bruce Willis Bugbee, The Genesis of American Patent and Copyright Law (Washington: Public Affairs Press, 1967), 128.

[4] Ibid.; Frank David Prager, "The Steamboat Pioneers Before the Founding Fathers," Journal of the Patent Office Society 37 (1955): 486; Andrea Sutcliffe, Steam: The Untold Story of America's First Great Invention ( New York: Palgrave Macmillan, 2004), 26-85.

[5] James Madison, "Observations by J.M.," in Documentary History of the Constitution of the United States of America 1786-1870, vol. 4 (Washington: Dept. of State, 1905),128.

[6] James Madison, "The Federalist. No. XLIII," in Henry Cabot Lodge, ed., The Federalist: A Commentary on the Constitution of the United States being a collection of essays written in support of the constitution agreed... (New York: G.P. Putnam's Sons The Knickerbocker Press, 1892), 267; See us_1788.

[7] F.W. Geyer to Silas Deane, 1 May 1787, as cited in Curtis Putnam Nettels, The Emergence of a National Economy, 1776-1815 (New York: Holt, Rinehart and Winston, 1962), 101n.

[8] Madison, "Observations by J.M."

[9] Waltrscheid, The Nature of the Intellectual Property Clause, 81-82.

[10] Charles Pinckney, Observations on the Plan of the Government Submitted to the Federal Convention on the 28^th of May 1787 (New York: Printed by Francis Childs, 1787). For the contention that Pinckney made the claim in the Observations see Bugbee, The Genesis of American Patent and Copyright Law, 193n.8; Walterscheid, The Nature of the Intellectual Property Clause, 104-105; Karl Fenning, "The Origins of the Patent and Copyright Clause of the Constitution," Georgetown Law Journal 17 (1929): 109, 109-110; Dotan Oliar, however, argues that according to the most plausible reading of the pamphlet Pinckney never made the claim that the South Carolina plan included such a proposed power, but simply referred to his later proposal during the convention. Dotan Oliar, "The Immediate Origins of the Intellectual Property Clause," (unpublished paper on file with author, 2006), 11-12.

[11] Fenning, "The Origins of the Patent and Copyright Clause," 110; Walterscheid, The Nature of the Intellectual Property Clause, 82; Oliar, "The Immediate Origins," 5-13.

[12] Walterscheid, The Nature of the Intellectual Property Clause, 100.

[13] Documentary History of the Constitution of the United States of America, 1786-1870, vol.1 (Washington: Dept. of State, 1894), 130-131; See us_1787.

[14] See us_1787a.

[15] See us_1787b.

[16] See us_1787.

[17] This remains a topic of a scholarly debate. See Walterscheid, The Nature of the Intellectual Property Clause, 101-106; Bugbee, The Genesis of American Patent and Copyright Law, 127; Oliar, "The Immediate Origins," 13-2; Tyler T. Ochoa and Mark Rose, "The Anti-Monopoly Origins of the Patent and Copyright Clause," Journal of the Patent And Trademark Office Society 84 (2002): 909, 922n.77.

[18] Max Farrand ed.,The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1911), 2:505.

[19] Madison, "The Federalist. No. XLIII," 267; See us_1788.

[20] For the difficulties with Madison's arguments in the Federalist No. 43 see Walterscheid, The Nature of the Intellectual Property Clause, 220-226.

[21] (1769) 4 Burr. 2302.

[22] (1774) 4 Burr. 408.

[23] Edward C. Waltrscheid, "Understanding the Copyright Act of 1790: The Issue of Common Law Copyright in America and the Modern Interpretation of the Copyright Power," Journal of the Copyright Society of the USA. 53 (2006): 313, 327.

[24] Merrill Jensen, John P Kaminski, and Gaspare J Saladino, eds., The Documentary History of the Ratification of the Constitution, vol. 2, Ratification of the Constitution by the States, Pennsylvania (Madison: State Historical Society of Wisconsin, 1976), 415.

[25] The Documentary History of the Ratification of the Constitution, vol.16, Commentaries on the Constitution, public and private, 1 February 1788, to 31 March, 1788, 382.

[26] Irah Donner, "The Copyright Clause of the U.S. Constitution: Why Did the Framers Include it With Unanimous Approval?," American Journal of Legal History 36 (1992): 361, 372.

[27] Prager, "The Steamboat Pioneers," 515-522.

[28] Tench Coxe, Esq., "An address to assembly of the friends of American manufacture, convened for the purpose of establishing a society for the encouragement of manufactures and the useful arts, read in the University of Pennsylvania, on Thursday the 9th of August, 1787-by Tench Coxe, Esq. and published at their request," The American Museum of Repository of Ancient and Modern Fugitive Pieces, & c. 2 (Philadelphia: Printed by Matthew Carey, 1787): 249-255.

[29] Walterscheid, The Nature of the Intellectual Property Clause, 96-97.

[30] See Craig Allen Nard & Andrew Morriss, "Constitutionalizing Patents: From Venice to Philadelphia," Review Law and Economics 2 (2006): 223, 299-304.

[31] See the commentary for us_1783a.

[32] See Walterschied, The Nature of the Intellectual Property Clause, 92-94. That was the opinion of Justice Story who wrote in 1833 that "it was doubtless to this knowledge of the common law and of statutable rights of authors and inventors, that we are to attribute our constitutional provision." Joseph Story, Commentaries on the Constitution of the United States; with a preliminary review of the constitutional history of the Colonies and States before the adoption of the Constitution (Boston: Hillard, Gray, and Company, 1833), 2: §1152.

[33] See Oren Bracha, "The Commodification of Patents 1600-1836: How Patents Became Rights and Why We Should Care," Loyola Los Angeles Law Review 38 (2004): 177, 191-200; Ochoa and Rose, "The Anti-Monopoly Origins," 912-916.

[34] Thomas Jefferson to James Madison, 31 July 1788, in The Republic of Letters: the correspondence between Thomas Jefferson and James Madison, 1776-1826, ed. James Morton Smith, vol. 1, 1776-1790 (New York: Norton, 1995), 545.

[35] Ibid., James Madison to Thomas Jefferson, 17 October 1788, 566.

[36] Ibid., Thomas Jefferson to James Madison, 28 August 1789, 630.

[37] See the commentary for uk_1747.

[38] See the commentary for us_1781.

[39] See the commentary for us_1783a.

[40] Walterscheid The Nature of the Intellectual Property Clause, 95.

[41] Ibid., 86.

[42] See the commentary for us_1783a.

[43] Walterscheid, The Nature of the Intellectual Property Clause, 94.

[44] Walterscheid, The Nature of the Intellectual Property Clause, 80-81, 83.

[45] Frank David Prager, "The Historic Background and Foundation of American Patent Law," American Journal of Legal History 5 (1961): 309, 318; George Ramsey, "The Historical Background of Patents," Journal of the Patent Office Society 18 (1936): 7, 15-16. For a critique of this claim see Walterscheid, The Nature of the Intellectual Property Clause, 212-220.

[46] Fenning, "The Origins of the Patent and Copyright Clause," 116.

[47] See e.g. Dotan Oliar, "Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress's Intellectual Property Power," Georgetown Law Journal 94 (2006): 1771; Yochai Benkler, "Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information," Berkeley Technology Law Journal 15 (2000): 535.

[48] See e.g. Paul M. Schwartz and William M. Treanor, "Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property," Yale Law Journal 112 (2003): 2331; Thomas B. Nachbar, "Judicial Review and the Quest to Keep Copyright Pure," Journal on Telecommunications and High Technology Law 2 (2003): 33; Thomas B. Nachbar, "Intellectual Property and Constitutional Norms," Columbia Law Review 104 (2004): 272.

[49] Baker v. Selden, 101 U.S. 99, 105 (1879); Graham v. John Deere Co., 383 U.S. 1, 5 (1966); Eldred v. Ashcroft, 537 U.S. 186 (2003).

[50] See e.g. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. 499 U.S. 340 (1991); Trade Mark Cases, 100 U.S. 82 (1879).

[51] See Sanford Levinson, " ‘The Constitution' in American Civil Religion," The Supreme Court. Review 1979 (1979):123; Thomas C. Grey, "The Constitution as Scripture," Stanford Law Review 37 (1984): 1.

[52] Joseph Barnes, Treatise on the Justice, Policy and Utility of Establishing an Effectual System for Promoting the Progress of Useful Arts by Assuring Property in the Products of Genius (Philadelphia: Printed by Francis Bailey, 1792), 16. Barnes was James Rumsey's attorney and was active both in promoting individual patent applications and in lobbying for statutory reform.

[53] Linda Grant De Pauw, Charles Bangs Bickford, and Helen E Veit, eds., The Documentary History of the First Federal Congress of the United States, vol.3, House of Representatives Journal (Baltimore: Johns Hopkins University Press, 1977), 28-29.

[54] Ibid., vol. 10, Debates in the House of Representatives, 220.

[55] Ibid., vol. 4, Legislative Histories, 530-531.

[56] Tench Coxe to James Madison, 21 March 1790, in James Madison, The Papers of James Madison, Charles F. Hobson and Robert Allen Rutland, eds., vol. 13, 20 January 1790--31 March 1791 (Charlottesville: University Press of Virginia, 1981), 111-114.

[57] Ibid., James Madison to Tench Coxe, 28 March 1790, 128.

[58] Alexander Hamilton, The Papers of Alexander Hamilton, Harold Coffin Syrett and Jacob Ernest Cooke, eds., vol. 10, December 1791--January 1792 (New York: Columbia University Press, 1966), 307-308

[59] Compare Walterscheid, The Nature of the Intellectual Property Clause, 315-319 and Doron Ben Atar, "Alexander Hamilton's Alternative: Technology Piracy and the Report on Manufactures," The William and Mary Quarterly 52 (1995): 411.

[60] Thomas Fitzsimmons to Tench Coxe, 7 March 1790, cited in Walterscheid, The Nature of the Intellectual Property Clause, 322.

[61] Ibid., 322-323.

[62] Livingston v. Van Ingen, 9 Johns. 505, 583 (1812).

[63] Story, Commentaries, §1153.

[64] 42 U.S. 202, 206 (1843).

[65] Clayton v. Stone, 5 F. Cas. 999, 1000 (S.D.N.Y. 1829).

[66] Higgins v. Keuffel, 140 U.S. 428, 430-431 (1891); See also Baker v. Selden, 101 U.S. 99, 105 (1879).

[67] See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56-59 (1883); Martinetti v. Maguire, 16 F. Cas. 920 (C.C.D.Cal. 1867).

[68] 100 U.S. 82 (1879).

[69] Ibid., 93-44.

[70] Ibid.

[71] 383 U.S. 1, 5 (1966).

[72] 499 U.S. 340, 346-347 (1991).

[73] Eldred v. Ashcroft, 537 U.S. 186 (2003).

[74] See Pamela Samuelson, "The Constitutional Law of Intellectual Property After Eldred v. Ashcroft," Journal of the Copyright Society of the U.S.A. 50 (2003): 547; "Symposium, Eldred v. Ashcroft: Intellectual Property, Congressional Power, and the Constitution," Loyola Los Angeles Law Review 36 (2003): 1; "Symposium, The Constitutionalization of Technology Law," Berkeley Technology Law Journal 15 (2000): 529.