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CHAPTER TWO
Intellectual Property & the Constitution
[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;”
U.S. Constitution Art. I, § 8, cl. 8.
Introduction
In this chapter, we explore the constitutional sources (and possible limitations) on
Congress’s powers to make intellectual property law. There are two reasons to want to
do this. First, it will help us understand the reach of, and the limits on, Federal intellectual
property law, and in particular the way those limits are shaped by interaction between
three constitutional provisions, Art. I, § 8, cl. 8 quoted above, ‡ the Commerce Clause and
the First Amendment. Second, and perhaps more important, understanding the animating
constitutional provisions, their goals, and their inner tensions, will shine a light on the
way that the courts interpret existing intellectual property law. There are three basic
conceptual boxes in the Federal intellectual property system, and Congress, and the
happenstance of technological development, keep depositing new material, new social
practices and new technology into those conceptual boxes. The ideas expressed in the
constitutional sources and limitations explored in this sector may shape the way that
judges interpret the law in the process that follows.
Congress’s power to legislate in any given field must be founded on one of the
powers enumerated in Article I, section 8 of the Constitution. Its power to offer exclusive
rights to authors and inventors (i.e. copyright and patent) derives from the Intellectual
Property Clause which is reproduced at the top of this page.
At the outset, there are a few notable things about this grant of power. First, it is
the only clause that comes with its own, built-in justification: “to promote the progress
of science and useful arts.” None of the other clauses list a rationale. For example,
Congress also has the power:
• To borrow money on the credit of the United States;
• To regulate commerce with foreign nations, and among the several states, and
with the Indian tribes;
• To establish a uniform rule of naturalization, and uniform laws on the subject of
bankruptcies throughout the United States;
• To coin money, regulate the value thereof, and of foreign coin, and fix the
standard of weights and measures;
• To provide for the punishment of counterfeiting the securities and current coin
of the United States;
• To establish post offices and post roads.
Like some other clauses, the Intellectual Property Clause contains obvious
‡ This clause is variously referred to as the Copyright Clause, Copyright and Patent Clause, and Intellectual
Property Clause.