Patents, Copyrights and the Constitution, Perfect Together

Congressional power to grant both patents and copyrights is derived from Art. I, Sec. 8, Clause 8 of the United States Constitution, the so-called Intellectual Property Clause.  To patent attorneys Art. I, Sec. 8, Clause 8, will forever be known as the Patent Clause.  For attorneys specializing in copyright law this clause is known as the Copyright Clause.  It is probably best to simply recognize that our founding fathers deemed intellectual property rights so vitally important to the success and stability of our new country that these rights were written into the Constitution, a document not generally known for its length and specificity.

As James Madison stated in Federalist Paper No. 43, the usefulness of the Congresses power to award both patents and copyrights “will scarcely be questioned.”  Madison, Debates in the Federal Convention of 1787, at 512-13 (Hunt and Scott ed. 1920).

Nimmer also explains:

When the framers of the United States Constitution met in Philadelphia to consider which powers might best be entrusted to the national government, there appears to have been virtual unanimity in determining that copyright should be included within the federal sphere.  Although the committee proceedings that considered the copyright clause were conducted in secret, it is known that the final form of the clause was adopted without debate.

1 Melville B. Nimmer & David Nimmer, Nimmer on Copyrights, § 1.01[A] (2000).

Congress has been exercising its prerogative to grant both patents and copyrights.  It is indeed important to remember that the ultimate decision with respect to whether to grant protection in either copyrights or patents is left to the sound discretion of Congress.  Nothing in the Constitution requires that Congress actually award protection in the form of copyrights and/or patents.  In this regard the United States Supreme Court has explained:

While the area in which Congress many act is broad, the enabling provision of Clause 8 does not require that Congress act in regard to all categories of materials which meet the constitutional definitions. Rather, whether any specific category of “Writings” is to be brought within the purview of the federal statutory scheme is left to the discretion of the Congress. The history of federal copyright statutes indicates that the congressional determination to consider specific classes of writings is dependent, not only on the character of the writing, but also on the commercial importance of the product to the national economy.

Goldstein v. California, 412 U.S. 546, 562 (1973).  Nevertheless, Congress has consistently chosen to grant both patents and copyrights since the enactment of the first copyright statute in 1790, and the first patent statute, also in 1790.

The Copyright Act has undergone almost continual change and modification since that year. The three most important modifications to the Copyright Act are perhaps the Copyright Act of 1909, the Copyright Act of 1976, and most recently, the Digital Millennium Copyright Act, which was passed in 1998, by the second session of the 105^th Congress.

Like the first Copyright Act, the first Patent Act has undergone changes and modifications since it was first enacted. These changes, however, are generally speaking not of the variety experienced by the Copyright Act.  Historically the Copyright Act has increasingly becoming a piece of special interest legislation with specialized provisions to please almost every special interest group and lobbyist.  This is not to say that the Patent Act does not cater to special interests, but rather the Patent Act as a whole is a more stable and cohesive statute than is the Copyright Act, although with patent reform efforts underway currently in Congress it is quite possible that the Patent Act will succumb to special interest needs and simply change patent law without making any discernible positive difference.  Nevertheless, several major revisions in the Patent Act have occurred, with the last  major revision occurring in 1952. More recently the Patent Act was revised in 1999 by the enactment of the American Inventors Protection Act, which amended Titled 35 in several significant ways.

The reason the U.S. Constitution grants Congress the power to legislate in the area of intellectual property is to “promote the Progress of Science and useful Arts.”  See U.S. Const. art. I, § 8, cl. 8.  It is interesting to note that the word “science” refers to protection of copyrightable subject matter and the term “useful arts” refers to the protection of patentable inventions.  Giles Sutherland Rich, the father of the 1952 Patent Act, explained this in an address at Franklin Pierce Law Center in 1994.  Judge Giles Sutherland Rich explained:

[O]ver a time of two centuries, the meaning of even common words may change. “Science” as we use it today does not have the connotation it did in 1787 when it referred to knowledge in general, in all fields of knowledge. What we mean today by “science” was then called natural philosophy. It was quite clearly intended by the authors of the Constitution that copyright, not patents, was intended to promote science, and the province of rights granted to inventors respecting their “Discoveries” was to promote the “useful Arts.” Yet we find never ending references in the opinions of Federal Judges, perhaps looking at the patent clause for the first time, and taking what is there written at face value, to the promotion of “Science and the useful Arts” by the issuance of patents.

35 IDEA 1, 2 (1994).  Notwithstanding the evolution of the Constitutional language, both the patent and copyright laws promote this progress by extending to patent and copyright holders the right to exclude others.

The patent laws offer this exclusive right for a limited time as an incentive to inventors, entrepreneurs and corporations to engage in research and development, to spend the time, energy and capital resources necessary to create useful inventions; which will hopefully have a positive effect on society through the introduction of new products and processes of manufacture into the economy, including life saving treatments and cures.  See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480 (1974).  See also Mazer v. Stein, 347 U.S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’”); Universal Oil Products Co. v. Global Oil Refining Co., 322 U.S. 471, 484 (1944)(“As a reward for inventions and to encourage their disclosure, the United States offers a seventeen-year monopoly to an inventor who refrains from keeping his invention a trade secret.”)

Likewise, the copyright laws offer exclusive rights for a limited time as an incentive to authors to create.  The purpose of providing authors with copyright protection is to stimulate activity in the arts, which will in turn provide intellectual enrichment for society.  This utilitarian goal is achieved by permitting authors to reap the rewards of their creative efforts.

Given that today’s business world is increasingly based on a company’s ability to innovate and acquire intangible assets in the form of both copyrights and patents, it would appear as if the constitutional goal of stimulating creativity and invention has been wildly successful.