The Copyright and Patent Clause

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. . . .

—Adam Mossoff

Introduction

Article 1, Section 8, Clause 8 is usually identified as the Copyright and Patent Clause, although it is also referred to as the Progress Clause or the Intellectual Property Clause. The Framers did not use the terms “copyright” or “patent,” but this provision authorizes Congress to enact copyright and patent statutes, which were some of the first laws enacted by the First Congress in 1790. The American copyright and patent systems arose out of the English copyright and patent systems but departed significantly from the English model.

Early Americans uniquely protected patents and copyrights as property rights, following the constitutional authorization to Congress to “secure” to “Authors and Inventors” an “exclusive Right to their respective Writings and Discoveries.”¹ In this respect, the American copyright and patent laws were influenced by John Locke’s natural rights philosophy, which justified the protection of the fruits of the productive labors of innovators and creators.

In the early Republic, James Madison, Chancellor Kent, and others viewed patents and copyrights as property rights secured to inventors and authors. By contrast, Thomas Jefferson was equivocal about patents and copyrights but is largely known today for viewing patents as monopolies. Today, reliable and effective property rights in copyright and patent have been upended by the Internet and other new technologies, as well as by the long-standing tension between the monopoly and property perspectives of these intellectual property rights.

The English Copyright and Patent Systems

The Copyright and Patent Clause “was written against the ‘backdrop’ of [pre-Revolutionary] English patent practices.”² The Crown granted royal monopolies by “letters patent,” the legal device for exercising the royal prerogative. The Crown abused its prerogative, and Parliament ultimately enacted the Statute of Monopolies in 1623. This law eliminated these abuses by limiting the issuance of patents to inventors or importers of new trades, imposing a fourteen-year term limit, and conferring jurisdiction over patents in the common-law courts.³ By the late eighteenth century, patents were still granted by the Crown, but they were grants of personal privilege to inventors and importers of new trades in the realm.

Copyright also finds its provenance in royal patent grants of monopolies to publishers. Modern copyright law begins in the early eighteenth century with Parliament’s enactment of the Statute of Anne of 1709.⁴ This statute, in conjunction with common-law court decisions, shifted the focus of the vesting of the exclusive right against unauthorized copies from publishers to authors.⁵

By the eighteenth century, English copyright and patent laws were influenced by John Locke’s natural rights theory. Locke himself defended copyrights as property rights of authors in 1695,⁶ and he wrote approvingly in the Second Treatise of “Inventions and Arts” as exemplars of property created through productive labor.⁷ Applying these ideas, Sir William Blackstone wrote that the right authors have in their literary works is a “species of property” because it is “grounded on labour and invention,” referring to “Mr. Locke” and citing the Second Treatise.⁸ However, Blackstone was of two minds when it came to patents, which he still recognized as a “royal patent of privilege.”⁹

Framing the Copyright and Patent Clause

The United States’s copyright and patent systems were based on a foundation in Lockean political theory and thus represented the same fundamental break from the English system that other U.S. political and legal institutions represented.¹⁰ Between 1776 and 1787, for example, several states enacted copyright statutes that restated the Lockean principle that there is “no property more peculiarly a man’s own than that which is produced by the labour of his mind.”¹¹ There were no general patent statutes enacted by the states under the Articles of Confederation, but the Constitution’s unification of copyrights and patents in a single clause strongly suggests the unification of a common justification in Lockean property theory.

The Copyright and Patent Clause exemplifies American exceptionalism for at least two reasons: It is the first time in history that a country’s founding document expressly authorizes the government to protect patents and copyrights, and it is the only provision in the original Constitution in which the federal government is authorized to “secur[e]” a “right.”

Yet, during the Constitutional Convention, there was no official commentary by the Framers about copyrights or patents. According to James Madison, the copyright and patent “clause was agreed to nem. con” (without debate).¹² The Committee on Style was responsible for the specific phrasing of Article 1, Section 8, Clause 8 as it now exists in the Constitution.

The specific text of the clause and its placement in the Constitution reveal several other important choices made by the Framers. First, the Copyright and Patent Clause is in Article I, Section 8, which delegates all powers to Congress. The Framers’ decision to authorize Congress rather than the Executive to secure patents and copyrights is a key difference from the English patent practice in which patents were granted by the Crown as personal privileges.¹³

Second, the clause authorizes the securing of copyrights and patents only for the “Writings and Discoveries” of “Authors and Inventors.” The patent statutes enacted by the First Congress, an authoritative source on the original public meaning of the Constitution, secured patents only to first “inventors.”¹⁴ By contrast, the Crown granted English patents to any person who was first to file an application for these royal privileges without regard to whether this person was an inventor. The U.S. intellectual property system represented a shift away from discretionary royal grants of personal privileges toward the protection of property rights secured in legal institutions like courts defined by the rule of law and due process.¹⁵

Madison on Copyrights and Patents

James Madison is the only Framer to comment on the original public meaning of Copyright and Patent Clause in an authoritative source. In justifying the protection of patents and copyrights, Madison stated in Federalist No. 43 that the “utility of this power will scarcely be questioned,” which perhaps explains the dearth of commentary by Framers and the lack of debate in the Convention. The reason, Madison explained, was that “[t]he public good in both cases [patents and copyrights] coincides with the claims of individuals.” This reflects the well-evidenced Lockean view in the Founding era that the protection of property rights benefits both individuals and the public good. The Framers authorized Congress to secure copyrights and patents as federal property rights because the “States cannot separately make effectual provisions for either of the cases.”

Madison went beyond this prudential justification for securing patents and copyrights in the Constitution and further justified them as fundamental property rights. He observed that copyright was “solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.” In the eighteenth century, it was widely accepted that the common law secured natural rights.¹⁶ Thus, the equal reason that justifies patents along with copyrights is the Lockean natural right to property that already informed English court decisions and Blackstone’s discussion of copyright in his Commentaries. Just as civil rights are justified by natural rights philosophy, Madison made the point here that natural rights philosophy also justified the protection of patents as fundamental civil rights in property.¹⁷

Chancellor James Kent advanced the Lockean principle in his influential Commentaries on American Law. Kent, who worked closely with Alexander Hamilton in the Founding era before becoming a New York judge, classified copyrights and patents under the title “Original Acquisition by Intellectual Labor.”¹⁸ Kent explained that “literary property” is a form of “property acquired by one’s own act and power.”¹⁹ Both authors and inventors “should enjoy the pecuniary profits resulting from mental as well as bodily labor.”²⁰ Justice Joseph Story is recognized as one of the architects of American patent law given his many opinions in patent cases.²¹ He also agreed with Madison that patents and copyrights are property rights as distinguished from the hoary English grants of personal privileges in commercial monopolies.²²

Some early nineteenth-century judges and officials did view patents and copyrights as special privileges or monopolies,²³ but Madison’s view of copyrights and patents informed the public meaning of the Copyright and Patent Clause and became the prevailing public meaning in the early Republic. The “exclusive right” in patents was secured as a property right, for example, against the government. Although the Crown claimed a prerogative power to use the royal privileges it bestowed in English patents, the “exclusive right” in the Constitution limited unauthorized government uses of patents through the Due Process and Takings Clauses.²⁴

Jefferson on Patents

The Founders were not all of one mind about patent rights. Although Thomas Jefferson did not comment on copyright, he vacillated between skepticism and opprobrium about patents.²⁵ Jefferson, who wrote the Patent Act of 1793, believed that “ingenuity should receive a liberal encouragement.”²⁶ In an 1813 letter, Jefferson denies any natural rights justification for patents. He stated that the “embarrasment [sic] of an exclusive patent” is permitted only because these “monopolies of invention” serve the “benefit of society.”²⁷ The Supreme Court has cited this letter.²⁸

The public understanding in the Founding era was more in line with Jefferson’s positive views of patents as well as Madison’s views. Moreover, other prominent early American jurists endorsed the Framers’ view of patents and copyrights as property rights. Justice Story and Chancellor James Kent are two exemplars of jurists who endorsed this public meaning.

Modern Doctrine

In copyright and patent cases, the modern Supreme Court has wavered between the monopoly and property perspectives. In patent law, the Supreme Court has quoted and cited Jefferson’s view of patents as monopolies as expressed in his 1813 letter, despite Jefferson not being a Framer.²⁹ Since the turn of the century, the Court has decided patent cases at a rate not seen since the early twentieth century. Many decisions frame patents as monopolies or public franchises; this has resulted in significant limitations of the rights of inventors to do such things as, for example, obtain patents³⁰ and commercialize their patents in the marketplace.³¹ In Oil States Energy Services v. Greene’s Energy Group (2018), the Court held for the first time that patents are public rights or public franchises, not private rights, and are subject to cancellation by administrative fiat exercised in ways similar to the ways the English prerogative power was exercised.³²

In copyright law, however, the Supreme Court has more consistently affirmed that copyright is a property right. Harper & Row v. Nation Enterprises (1985) held that “[b]y establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”³³ Eldred v. Ashcroft (2003) rejected the argument that the sole justification for copyright is utilitarianism, acknowledging that both natural rights theory and utilitarianism are legitimate justifications for the rights of creators under copyright law.³⁴ The Court was incrementally delimiting the scope of copyright protection in creating an expansive notion of “fair use,” which is a safe harbor from copyright infringement liability.³⁵ But a significant decision in Warhol v. Goldsmith (2023) seems to have ended this development, as the Court protected the copyright in a photograph and rejected the argument that some changes in an unauthorized sale of the photo made it a “fair use.”³⁶

Open Questions

The status of both copyrights and patents as either private rights or public rights/public franchises continues to remain unsettled and affects all aspects of these intellectual rights. This is especially important as the expanding administrative state raises new questions about administrative powers over or regulatory restrictions of these property rights. Closely related to the competing historical perspectives of patents and copyrights as either property rights or monopoly privileges, the relationship of these intellectual property rights to antitrust law remains unsettled.

1. Art. I, § 8, cl. 8. ↩︎
2. Graham v. John Deere Co., 383 U.S. 1, 5 (1966). ↩︎
3. An Act Concerning Monopolies, 21 Jac. I, c. 3 (1623). ↩︎
4. Statute of Anne, 8 Anne c. 21 (1709). ↩︎
5. H. Tomas Gomez-Arostegui, Copyright at Common Law in 1774, 47 Conn. L. Rev. 1 (2014). ↩︎
6. John Locke, John Locke: Political Essays 330–38 (Mark Goldie, ed., 1997). ↩︎
7. John Locke, Second Treatise of Government, ch. 5 (1689). ↩︎
8. 2 Blackstone 405. ↩︎
9. Id. at 406 ↩︎
10. McKeever v. United States (McKeever’s Case), 14 Ct. Cl. 396 (1878); Adam Mossoff, Institutional Design in Patent Law: Private Property Rights or Regulatory Entitlements, 92 So. Cal. L. Rev. 921 (2019). ↩︎
11. Copyright Enactments of the United States, 1783–1906, Copyright Off. Bulletin No. 3, at 14, 18–19 (Thorvald Solberg comp., 1906). ↩︎
12. 2 Farrand’s 509–10. ↩︎
13. McKeever, 14 Ct. Cl. at 420. ↩︎
14. Id. at 417–20. ↩︎
15. B. Zorina Khan, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790–1920, at 51 (2005). ↩︎
16. Richard H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 96–97 (2015). ↩︎
17. Adam Mossoff, Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent “Privilege” in Historical Context, 92 Cornell L. Rev. 953 (2007). ↩︎
18. 2 James Kent, Commentaries on American Law 497 (O.W. Holmes, Jr. ed., 1873). ↩︎
19. Id. ↩︎
20. Id. ↩︎
21. Frank D. Prager, The Influence of Mr. Justice Story on American Patent Law, 5 Am. J. Legal Hist. 254 (1961). ↩︎
22. Reed v. Cutter, 20 F. Cas. 435, 438 (C.C.D. Mass. 1841) (Story, Circuit Justice); Ryan v. Goodwin, 21 F. Cas. 110, 112 (C.C.D. Mass. 1839) (Story, Circuit Justice); Mellus v. Silsbee, 16 F. Cas. 1332, 1333–34 (C.C.D. Mass. 1825) (Story, Circuit Justice). ↩︎
23. Washing Machine Co. v. Earle, 29 F. Cas. 332 (C.C.E.D. Pa. 1861). ↩︎
24. Allen v. Cooper, 589 U.S. 248, 261–62 (2020); Adam Mossoff, Patents as Constitutional Private Property: The Historical Protection of Patents Under the Takings Clause, 87 B.U. L. Rev. 689 (2007). ↩︎
25. Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 So. Cal. L. Rev. 993, 1026–34 (2006); Mossoff, Who Cares What Thomas Jefferson Thought About Patents?, at 959–67. ↩︎
26. Letter from Thomas Jefferson to Oliver Evans (May 2, 1897), https://perma.cc/7LKL-FQU3. ↩︎
27. Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), https://perma.cc/88KQ-AVYC; Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 147–48 (1989); Graham, 383 U.S. at 7–11. ↩︎
28. Diamond v. Chakrabarty, 447 U.S. 303, 308–09 (1980). ↩︎
29. Bonito Boats, 489 U.S. 141; Graham, 383 U.S. at 5; Frank H. Easterbrook, Intellectual Property Is Still Property, 13 Harv. J. L. & Pub. Pol’y 108, 117 (1990). ↩︎
30. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014); Assoc. for Molecular Pathology v. Myriad Genetics, 133 U.S. 2107 (2013); Mayo Collaborative Servs. LLC v. Prometheus Labs., Inc., 566 U.S. 66 (2012); Bilski v. Kappos, 561 U.S. 593 (2010). ↩︎
31. Impression Prods., Inc. v. Lexmark Int’l, Inc., 581 U.S. 360 (2017); Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007). ↩︎
32. Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 584 U.S. 325 (2018). ↩︎
33. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985). ↩︎
34. Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003). ↩︎
35. Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021); Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994); Universal City Studios v. Sony Corp., 464 U.S. 417 (1984). ↩︎
36. Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). ↩︎