Article I, Section 8, Clause 8:

[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.

Under the Articles of Confederation, the Federal Government lacked power to grant copyrights or patents.1 Recognizing the limits on its authority, the Continental Congress passed a resolution in May 1783 calling upon the state legislatures to enact copyright legislation.2 All of the then-existing states except Delaware adopted such laws, with varying scope and terms of protection.3 Similarly, to the extent patent rights existed at all during this period, such rights derived from varying state laws.4

This patchwork of state-by-state protection created difficulties for authors and inventors: obtaining multiple state copyrights or patents was “time consuming, expensive, and frequently frustrating.” 5 In April 1787, James Madison deplored the “want of uniformity in the laws concerning . . . literary property,” though he conceded that the issue was of “inferior moment” compared to other concerns facing the early Republic.6 Perhaps for this reason, neither the early plans of government presented at the Constitutional Convention nor the first draft of the Constitution mentioned intellectual property.7

On August 18, 1787, Madison and Charles Pinckney of South Carolina each proposed additions to the draft Constitution that would grant Congress power over intellectual property.8 These proposals would have granted Congress the power to, among other things: (i) “secure to literary authors their copy rights for a limited time” ; (ii) “encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries” ; and (iii) “grant patents for useful inventions.” 9 The matter was referred to the Committee of Eleven, who combined elements of these proposals to produce the language that would become the Intellectual Property (IP) Clause on September 5, 1787.10 The Convention approved the IP Clause without objection or any recorded debate.11

In the Federalist No. 43, Madison explained the IP Clause’s purpose:

Madison’s view of the IP Clause’s utility was not universally held. Thomas Jefferson, learning of the IP Clause in Paris, wrote to Madison on July 31, 1788, suggesting that the proposed Bill of Rights include a provision “to abolish . . . Monopolies, in all cases.” 13 Acknowledging this “may lessen[ ] the incitements to ingenuity,” Jefferson argued “the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.” 14 Jefferson later tempered his views, proposing a constitutional amendment that “Monopolies may be allowed to persons for their own productions in literature, & their own inventions in the arts, for a term not exceeding—years, but for no longer term & no other purpose.” 15 Congress did not act on Jefferson’s proposal, but his views on intellectual property have influenced the Supreme Court.16

Following the ratification of the Constitution, the first Congress invoked its power under the IP Clause to enact national copyright and patent laws in 1790.17 Protections for patents and copyrights have been a part of federal law ever since.18

Footnotes

1

See Articles of Confederation of 1781, art. II ( “Each state retains . . . every Power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” ). The articles did not expressly mention patents or copyrights. See Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L. 1, 7 (1994).

2

24 Journals of the Continental Congress 1774–1989, at 326–27 (1922); see also Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 648–49 (1943).

3

Fred Fisher Music Co., 318 U.S. at 649–50.

4

See generally Bruce W. Bugbee, The Genesis of American Patent and Copyright Law 84–103 (1967) (surveying early state patent systems).

5

Walterscheid, supra note 1, at 22; see also Goldstein v. California, 412 U.S. 546, 556 & n.12 (1973) (describing difficulties in the country’s “early history” faced by an “author or inventor who wishes to achieve protection in all States when no federal system of protection is available” ); see generally Bugbee, supra note 4, at 128–29.

6

4 Documentary History of the Constitution of the United States of America 1786–1870, at 128 (1905) [hereinafter Documentary History].

7

See Walterscheid, supra note 1, at 25; Dotan Oliar, Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power, 94 Geo. L.J. 1771, 1788–89 (2006).

8

See Oliar, supra note 7, at 1789.

9

1 Documentary History, supra note 6, at 130–31 (journal of James Madison).

10

Oliar, supra note 7, at 1790; 2 The Records of the Federal Convention of 1787, at 505–10 (Max Farrand ed., 1911) [hereinafter Farrand’s Records].

11

2 Farrand’s Records, supra note 10, at 509–10; Bilski v. Kappos, 561 U.S. 593, 631 (2010) (Stevens, J., concurring in the judgment).

12

The Federalist No. 43 (James Madison). It should be noted that, contrary to Madison’s statement in the Federalist No. 43, the House of Lords held, in Donaldson v. Beckett (1774), 1 Eng. Rep. 837, that copyright in England was not a common law right.

13

13 The Papers of Thomas Jefferson 442–43 (1956).

14

Id.; see also Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 7–8 (1966).

15

Graham, 383 U.S. at 8.

16

See id. at 7–10 (discussing Jefferson’s “philosophy on the nature and purpose of the patent monopoly” ).

17

Act of Apr. 10, 1790, ch. 7, 1 Stat. 109 (patent); Act of May 31, 1790, ch. 15, 1 Stat. 124 (copyright).

18

Of course, the scope of copyright and patent protection has changed substantially over time. For example, the subject matter of copyright under the 1790 Copyright Act was limited to maps, books, and charts, with an initial term of fourteen years (plus an optional fourteen-year renewal term). See 1 Stat. 124, 124 (1790). Today, copyright protects (among other things) computer programs, musical works, sound recordings, motion pictures, and architectural works, and generally persists for a term of the life of the author plus seventy years. See 17 U.S.C. §§ 102(a), 302(a).