Copyright Clause

Last updated

The Copyright Clause (also known as the Intellectual Property Clause, Copyright and Patent Clause, or the Progress Clause [1] ) describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 8).


The clause states that:

"[the United States 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 clause is the basis of intellectual property laws in the United States, specifically copyright and patent laws.


On August 18, 1787, the Constitutional Convention was in the midst of a weeks-long stretch of proposals to establish what would become the enumerated powers of the United States Congress. Three such proposals made on that day addressed what are now lumped together under intellectual property rights. One, by Charles Pinckney was "to secure to authors exclusive rights for a limited time". The other two were made by James Madison, who had previously served on a committee of the Congress established under the Articles of Confederation which had encouraged the individual states to adopt copyright legislation. Madison proposed that the Constitution permit Congress "to secure to literary authors their copyrights for a limited time", or, in the alternative, "to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries". [2]

Both proposals were referred to the Committee of Detail, which reported back on September 5, 1787 with a proposal containing the current language of the clause. No record exists to explain the exact choice of words selected by the Committee on Detail, whose task was essentially no more than creating a draft Constitution by arranging the proposals that had been made into the most appropriate language. On September 17, 1787, the members of the Convention unanimously agreed to the proposed language, without debate, and this language was incorporated into the Constitution. [2]


The clause actually confers two distinct powers: the power to secure for limited times to authors the exclusive right to their writings is the basis for U.S. copyright law, and the power to secure for limited times to inventors the exclusive rights to their discoveries is the basis for U.S. patent law. Because the clause contains no language under which Congress may protect trademarks, those are instead protected under the Commerce Clause. Some terms in the clause are used in archaic meanings, potentially confusing modern readers. For example, "useful Arts" does not refer to artistic endeavors, but rather to the work of artisans, people skilled in a manufacturing craft; "Sciences" refers not only to fields of modern scientific inquiry but rather to all knowledge. [3]

The Copyright Clause is the only clause granting power to Congress for which the means to accomplish its stated purpose are specifically provided. The exact limitations of this clause have been defined through a number of United States Supreme Court cases interpreting the text.

Furthermore, the clause only permits protection of the writings of authors and the discoveries of inventors. Hence, writings may only be protected to the extent that they are original, [4] and "inventions" must be truly inventive and not merely obvious improvements on existing knowledge. [5] The term "writings of authors" appears to exclude non-human authorship such as painting by chimpanzees and computer code written by programmed computers, [6] but the issue has not been tested in litigation.

Although perpetual copyrights and patents are prohibitedthe language specifies "limited times"the Supreme Court has ruled in Eldred v. Ashcroft (2003) that repeated extensions to the term of copyright do not constitute a perpetual copyright. In that case, the United States Supreme Court rejected a challenge to the Sonny Bono Copyright Term Extension Act, also known pejoratively as the "Mickey Mouse Protection Act." [7] Petitioners in that case argued that successive retroactive extensions of copyright were functionally unlimited and hence violated the limited times language of the clause. Justice Ginsburg, writing for the Court, rejected this argument, reasoning that the terms provided by the Act were limited in duration and noted that Congress had a long history of granting retroactive extensions.

See also

Related Research Articles

Intellectual property Notion of ownership of ideas and processes

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are copyrights, patents, trademarks, and trade secrets. The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world's legal systems.

Eldred v. Ashcroft, 537 U.S. 186 (2003), was a decision by the Supreme Court of the United States upholding the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA). The practical result of this was to prevent a number of works from entering the public domain in 1998 and following years, as would have occurred under the Copyright Act of 1976. Materials which the plaintiffs had worked with and were ready to republish were now unavailable due to copyright restrictions.

Copyright Act of 1790

The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War. The stated object of the act was the "encouragement of learning," and it achieved this by securing authors the "sole right and liberty of printing, reprinting, publishing and vending" the copies of their "maps, charts, and books" for a term of 14 years, with the right to renew for one additional 14-year term should the copyright holder still be alive.

Useful art, or useful arts or technics, is concerned with the skills and methods of practical subjects such as manufacture and craftsmanship. The phrase has now gone out of fashion, but it was used during the Victorian era and earlier as an antonym to the performing art and the fine art.

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), was a case decided by the Supreme Court of the United States that upheld the power of Congress to extend copyright protection to photography.

First to file (FTF) and first to invent (FTI) are legal concepts that define who has the right to the grant of a patent for an invention. The first-to-file system is used in all countries.

The history of patents and patent law is generally considered to have started with the Venetian Statute of 1474.

Under United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is new, useful, and non-obvious. A patent is the right to exclude others, for a limited time from profiting of a patented technology without the consent of the patent-holder. Specifically, it is the right to exclude others from: making, using, selling, offering for sale, importing, inducing others to infringe, applying for an FDA approval, and/or offering a product specially adapted for practice of the patent.

In patent law, an inventor is the person, or persons in United States patent law, who contribute to the claims of a patentable invention. In some patent law frameworks, however, such as in the European Patent Convention (EPC) and its case law, no explicit, accurate definition of who exactly is an inventor is provided. The definition may slightly vary from one European country to another. Inventorship is generally not considered to be a patentability criterion under European patent law.

The enumerated powers of the United States Congress are the powers granted to the federal government of the United States. Most of these powers are listed in Article I, Section 8 of the United States Constitution.

Golan v. Holder, 565 U.S. 302 (2012), was a Supreme Court case that dealt with copyright and the public domain. It held that the "limited time" language of the United States Constitution's Copyright Clause does not preclude the extension of copyright protections to works previously in the public domain.

Uruguay Round Agreements Act

The Uruguay Round Agreements Act is an Act of Congress in the United States that implemented in U.S. law the Marrakesh Agreement of 1994. The Marrakesh Agreement was part of the Uruguay Round of negotiations which transformed the General Agreement on Tariffs and Trade (GATT) into the World Trade Organization (WTO). One of its effects is to give United States copyright protection to some works that had previously been in the public domain in the United States.

The history of United States patent law started even before the U.S. Constitution was adopted, with some state-specific patent laws. The history spans over more than three centuries.

Copyright Term Extension Act United States copyright law

The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States. It is one of several acts extending the terms of copyrights.

The philosophy of copyright considers philosophical issues linked to copyright policy, and other jurisprudential problems that arise in legal systems' interpretation and application of copyright law.

The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death. In the United States, any work published before January 1, 1926, is generally considered public domain.

Richard Crosby De Wolf (1875–1947) was acting Register of Copyrights from 1944–1945 and one of the first United States copyright law scholars to suggest a completely disjunctive reading of the Copyright Clause.

Criminal copyright laws prohibit the unacknowledged use of another's intellectual property for the purpose of financial gain. Violation of these laws can lead to fines and jail time. Criminal copyright laws have been a part of U.S. laws since 1897, which added a misdemeanor penalty for unlawful performances if "willful and for profit". Criminal penalties were greatly expanded in the latter half of the twentieth century, and those found guilty of criminal copyright infringement may now be imprisoned for decades, and fined hundreds of thousands of dollars.

Evans v. Jordan, 13 U.S. 199 (1815), was a United States Supreme Court case in which the Court held that someone who had copied a patented invention after the patent had expired, and before the patent was restored by a private bill, would be liable for damages for patent infringement for any use continuing after the patent was restored. It was the second published Supreme Court decision on patent law, and the first of four Supreme Court cases dealing with the Oliver Evans flour mill patent. Like other Supreme Court patent cases prior to Evans v. Eaton, however, this case did not deal with substantive patent law, but only with issues of statutory construction and infringement liability.

The copyright law of the United States has a long and complicated history, dating back to colonial times. It was established as federal law with the Copyright Act of 1790. This act was updated many times, including a major revision in 1976.


  1. Lessig, Lawrence (2004). Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (PDF) (PDF ed.). Internet Archive. p. 130–131. Archived from the original (PDF) on October 13, 2015. Retrieved July 19, 2018.
  2. 1 2 William F. Patry, Copyright Law and Practice (1994).
  3. Ochoa, Tyler T. (2007). "Chapter 7: Copyright Duration: Theories and Practice". In Yu, Peter K. (ed.). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. p. 133. ISBN   9780275988838. OCLC   71427267.
  4. See Feist Publications, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 349 (1991).
  5. Graham v. John Deere Co. , 383 U.S. 1 (1966).
  6. See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.2 (3d ed. 2017) ("The Office will not register works produced by nature, animals, or plants.").
  7. See A Platonic Dialogue on Eldred v. Ashcroft Archived July 17, 2011, at the Wayback Machine .

Further reading