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.

The Intellectual Property Clause1 (IP Clause) empowers Congress to grant authors and inventors exclusive rights in their writings and discoveries for limited times. This clause provides the foundation for the federal copyright2 and patent3 systems, with a parallel construction that divides into two parts, one for each form of intellectual property.4 As to copyrights, Congress may grant “Authors” exclusive rights to their “Writings” in order to “promote the Progress of Science.” (The “Progress of Science,” at the time of the Framing, referred to “the creation and spread of knowledge and learning.” 5 ) As to patents, Congress may grant “Inventors” exclusive rights to their “Discoveries” in order to “promote the Progress of . . . useful Arts” —that is, to encourage technological “innovation, advancement, or social benefit.” 6 Relying on the IP Clause, Congress has protected copyrights and patents in some form under federal law since 1790.7

Under the IP Clause, copyrights and patents are based on a utilitarian rationale that exclusive rights are necessary to provide incentives to create new artistic works and technological inventions.8 Without legal protection, competitors could freely copy such creations, denying the original creators the ability to recoup their investments in time and effort, reducing the incentive to create in the first place.9 The IP Clause thus reflects an “economic philosophy” that the “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.” 10

The Framers included the IP Clause in the Constitution to facilitate a uniform, national law governing patent and copyrights.11 In the Framers’ view, the states could not effectively protect copyrights or patents separately.12 Under the patchwork state-law system that prevailed in the Articles of Confederation period, creators had to obtain copyrights and patents in multiple states under different standards, a difficult and expensive process that undermined the purpose and effectiveness of the legal regime.13

The IP Clause is “both a grant of power and a limitation.” 14 Two such limitations apply to both copyrights and patents. First, the Clause’s plain language requires that the exclusive rights can only persist for “limited Times.” Thus, although the term of protection may be long, Congress cannot provide for a perpetual copyright or patent term.15 Second, the exclusive rights must promote the progress of science or useful arts. Courts are broadly deferential to Congress, however, as to the means that it uses to achieve this goal.16

Other constitutional limitations of the IP Clause are specific to either copyright or patent law. For example, only works that are original are copyrightable, because copyright extends only to the “Authors” of “Writings.” 17 In the context of patent law, only inventions that are novel and nonobvious are patentable “Discoveries” of “Inventors” ;18 furthermore, patentable inventions must have some substantial utility to promote the progress of the “useful Arts.” 19

Footnotes

1

This provision is also known as the “Patent Clause,” the “Copyright Clause,” the “Patent and Copyright Clause,” and the “Progress Clause.” See generally 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, 56 (1994) ( “[Article I, section 8, clause 8] is frequently referred to as either the Patent Clause, the Copyright Clause, or the Intellectual Property Clause, depending on the context in which it is being discussed.” ); Malla Pollack, What Is Congress Supposed to Promote?: Defining “Progress” in Article I, Section 8, Clause 8 of the United States Constitution, or Introducing the Progress Clause, 80 Neb. L. Rev. 754, 810 n.1 (2001) (noting usage of “Copyright and Patent Clause,” “Intellectual Property Clause,” “Exclusive Rights Clause,” and “Progress Clause” ). See, e.g., Allen v. Cooper, No. 18-877, slip op. at 6 (U.S. Mar. 23, 2020) (using the term “Intellectual Property Clause” ); Eldred v. Ashcroft, 537 U.S. 186, 194 (2003) (using the term “Copyright and Patent Clause” ); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 635 (1999) (using the term “Patent Clause” ); Goldstein v. California, 412 U.S. 546, 555 (1973) (using the term “Copyright Clause” ). Although this essay uses the term “Intellectual Property Clause,” the terminology is somewhat imprecise because the Clause does not encompass all of the legal areas that may be considered intellectual property, such as trademarks and trade secrets. See 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, 1845 n.1 (2006).

2

A copyright gives authors (or their assignees) the exclusive right to reproduce, adapt, display, and/or perform an original work of authorship, such as a literary, musical, artistic, photographic, or audiovisual work, for a specified time period. See 17 U.S.C. §§ 102, 106.

3

A patent gives inventors (or their assignees) the exclusive right to make, use, sell, or import an invention that is new, nonobvious, and useful, for a specified time period. 35 U.S.C. §§ 101–103, 271(a).

4

See generally Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Anatomy of a Congressional Power, 43 IDEA J.L. & Tech. 1 (2002) ( “[The IP Clause] exhibits a remarkably parallel or balanced structure . . . much favored in the eighteenth century . . . .” ); Karl B. Lutz, Patents and Science: A Clarification of the Patent Clause of the U.S. Constitution, 32 J. Pat. Off. Soc’y 83, 84 (1952) (explaining the parallel structure of the IP Clause); accord Golan v. Holder, 565 U.S. 302, 319 (2012); Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 5 n.1 (1966).

5

Golan, 565 U.S. at 324.

6

Graham, 383 U.S. at 6.

7

See Act of Apr. 10, 1790, ch. 7, 1 Stat. 109 (patents); Act of May 31, 1790, ch. 15, 1 Stat. 124 (copyrights).

8

See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) ( “[Copyrights and patents are] intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” ); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) ( “The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” ).

9

See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480 (1974) ( “The patent laws promote [the progress of the useful arts] by offering a right of exclusion for a limited period as an incentive to inventors to risk the often enormous costs in terms of time, research, and development.” ).

10

Mazer v. Stein, 347 U.S. 201, 219 (1954). Although economic incentives provide the dominant justification for copyright and patents, the IP Clause also empowers Congress to protect the so-called “moral rights” of creators, such as the right of attribution, in order to promote the progress of science and useful arts. See, e.g., Visual Artist Rights Act of 1990, Pub. L. No.

101-650

, tit. VI, 104 Stat. 5128 (1990).

11

Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 162 (1989) ( “One of the fundamental purposes behind the [IP Clause] was to promote national uniformity in the realm of intellectual property.” ).

12

The Federalist No. 43 (James Madison).

13

See Goldstein v. California, 412 U.S. 546, 556 (1973).

14

Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 5 (1966).

15

See Eldred v. Ashcroft, 537 U.S. 186, 199–204 (2003).

16

See id. at 212 ( “[I]t is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” ); Graham, 383 U.S. at 6 ( “Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose [of the IP Clause] by selecting the policy which in its judgment best effectuates the constitutional aim.” ).

17

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58–59 (1884).

18

See Graham, 383 U.S. at 6 ( “Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain.” ); Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 267 (1851) (concluding that the “essential elements of every [patentable] invention” require “more ingenuity and skill [than] possessed by an ordinary mechanic acquainted with the business” ).

19

Brenner v. Manson, 383 U.S. 519, 534 (1966) ( “The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility.” ); Graham, 383 U.S. at 6 ( “Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must ‘promote the Progress of . . . useful Arts.’” ).