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40 INTELLECTUAL PROPERTY & THE CONSTITUTION
modifiers: “by securing for limited Times.” But as we will see, the courts have also found
other, less immediately obvious, limitations in the clause. The Trade-Mark Cases, which
follow this introduction, represent one example of such a limitation, though the
constricted vision of Congress’s Commerce Clause power is no longer good law. (Today,
the Federal Trademark statute, the Lanham Act, is seen as well within Congress’s power
under the Lanham Act.) The excerpted fragment of the John Deere case provides a more
recent assertion of the limits of Congressional power in the context of patent law. But
important questions remain. If there are any strong limitations imposed by the Intellectual
Property Clause, do they also limit the power of the Congress under the other clauses of
the Constitution? For example, if under the Intellectual Property Clause, Congress is
forbidden from creating permanent copyrights or rights over unoriginal collections of
facts, may it do so under the Commerce Clause instead?
These questions are given particular saliency by two developments; first, the
increased importance of intellectual property rights in an information age that runs from
the Internet to the Human Genome project and second, a relatively uniform expansion of
intellectual property rights over the last fifty years.
We will turn first to the question of the sources of Congressional power to make
intellectual property law, the limits those sources impose and the interaction between
different grants of power. After that, we will turn to the limitations imposed by the First
Amendment. Before heading into the cases, though, we are going to think through the
Intellectual Property Clause. The goal is to come up with a range of its possible meanings.
PROBLEM 2-1
CONSTITUTIONAL INTERPRETATION.
[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.
Find each word or phrase in this clause that could constitute a limitation on
Congress’s power. Explain what the limitation would be, why one might believe
that such a limitation should be read into the clause and what kind of
assumptions your possible reasoning makes about the goal or function or meaning
of the clause. In addition, explain what implication each interpretation would
have for a judge or other decision maker trying to interpret a piece of legislation
made under the clause.
1.) Limitations on Congressional Power: Originality
Trade-Mark Cases
U.S. v. Steffens; U.S. v. Wittemann; U.S. v. Johnson
100 U.S. 82 (1879)
Mr. Justice MILLER delivered the opinion of the court.
The three cases whose titles stand at the head of this opinion are criminal