I bet you didn’t know that the United States Constitution has an Intellectual Property clause.
Yes, nestled between the now-famous Emoluments Clause and the rights bestowed on United States citizens, our founders contemplated the promotion of “useful arts and sciences.”
But, what precisely does the clause mean? What powers does it allow and/or limit?
Article I, Section 8, Clause 8 of the United States Constitution grants Congress the power
“[t]o 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.”
Like most things, the so-called Intellectual Property clause isn’t as clear as we’d like. Experts often refer to this clause as the patent and copyright clause, because “science and useful arts” refer only to patented and copyrighted creations.
Our Founding Fathers did not include trademarks or trade secrets within the Intellectual Property Clause. Those areas of Intellectual Property grew and developed independently (trademarks involve the mark “in commerce,” so they fall under the purview of the Commerce Clause). This explains why patents and copyrights have time limits—unique among IP tools.
The Intellectual Property Clause of the Constitution provides the United States Congress with authority to grant authors and inventors exclusive right to their creative works of art and inventions. However, the goals of patents and copyrights differ slightly, so the term limits differ, too.
Congress enacted the 1790 Patent Act, granting limited rights to inventors. This Act (and the subsequent amendments and changes to the original framework) is codified in Title 35 of the United States Code.
Lawmakers designed these rules to encourage inventors to disclose their new technology to the world. New inventors receive an incentive through a limited-time monopoly.
Currently, a limited-time monopoly means a 20-year period from the date of filing (the date the inventor or her attorney files the patent application). Of course, since “limited-time monopoly” is a relatively vague term, the actual life of a patent changed since the 1790 Patent Act.
Originally, patent terms were left to the Patent Board (consisting of the Secretary of State, Secretary of War and the Attorney General) to determine. However, monopoly grants could not exceed fourteen years. Over the years, lawmakers amended the structure of the Patent Act to allow for greater uniformity.
The most recent change to the United States Patent laws came in 2012. That year, Congress passed the America Invents Act. The AIA did not change the length of a patent but did make several other significant changes to the framework of patent law.
Once the 20-year patent protection period ends, the invention enters the “public domain.” This allows anyone to use inventions previously protected by patents. Our Founders believed populating the public domain with inventions further promoted progress because other inventors could use, learn from and improve upon the inventions.
Many notable patents in the “public domain” didn’t get there after their 20-year time ended, but rather were dedicated to the industry by their owner. For example, Elon Musk—founder of Tesla, SpaceX and billionaire entrepreneur—dedicated his patents that protected the electric vehicle technology of Tesla cars to the public domain to advance the science.
The 1790 Copyright Act granted limited rights to authors and artists. This Act (and the subsequent amendments and changes to the original framework) is codified in Title 17 of the United States Code.
The Founders wanted to further the “encouragement of learning.” The original Copyright Act secured for authors the “sole right and liberty of printing, reprinting, publishing and vending” copies of their “maps, charts, and books” for 14 years. It included the right to renew for one additional 14-year term, should the copyright holder still be alive.
This limited monopoly is different from patent law. It is tied directly to the author rather than to the invention (as with a patent). While registration is not necessarily required for a copyright (it technically attaches to newly created work), government-granted copyrights allow authors to profit off of their works (while living), as well as prevent anyone else from using their creation.
The length of a copyright changed dramatically since the 1790 Copyright Act. Lawmakers found compelling the argument authors should be able to continue to profit off their work, and they extended the time limit for copyrights. For recently created works (after 1978), a copyright lasts for the lifetime of the author—and 70 years after the author’s death.
The modern “limited monopoly” owes its structure, in part, to the “Sonny Bono Copyright Term Extension Act,” (or known as the “Mickey Mouse Protection Act” in some cynical circles). We will take a more extensive look at Mickey Mouse and Sonny Bono in a later article.
Once that magic date comes, just like a patent, the copyrighted work enters the public domain, in which anyone can use, publish, perform and create derivatives of the work. The copyright public domain helps foster further creativity and allows people to use the works in ways they otherwise were unable to when the work enjoyed copyright protection.
For a prime example of utilizing works in the public domain, consider Librivox – a non-profit company that provides audiobooks of legally reproducible, public-domain works. In recent years, a growing movement of authors and artists dedicate their works to the public domain to foster creativity.
The length of the exclusive “limited monopoly” changed several times since the signing of the Constitution. However, no patent or copyright will last forever—no matter how many times Congress moves to extend these monopolies. Our Constitution contemplates a “limited time” and, until amended, the public domain will continue to grow and provide enterprising young inventors, authors and artists with inspiration.
Meghan Nugent is an associate with SpencePC. She has extensive experience assisting clients in both transactional and litigation matters of all natures. The focus of her practice is Intellectual Property. She also assists the firm’s clients in the prosecution and litigation of trademarks.
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