Copyrights and Patents – Constitution Article 1 §8.8

This week I’m studying Article 1 §8.8 of the Constitution. It’s called the Copyright and Patent Clause because it’s about Congress’ power to establish copyrights and patents. As a writer, I am very interested the concept of copyrights; as a human, I am very interested in living in a functional nation. In the wonderful anime Kino’s Journey, a character wanders into a country where people live in peace and freedom and are welcoming to newcomers. His companion says it seems like a perfectly normal place. He replies, “A lot of people have to work very hard to make a place normal.”

Democracy is not for spectators; it takes a lot of work from a lot of people. To do it right, you have to know the rules. That’s why I’m studying the Constitution, one clause at a time. Next up: Article 1 §8.8.

The Copyright and Patent Clause

Article 1 §8.8

Congress shall have the 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;

Even though the words are never used, this clause is the foundation for the national patent and copyright laws.

Patents were invented (pardon the pun) in 1624 by the Statute of Monopolies. It allowed the English Parliament to endow inventors with the sole right to their inventions for fourteen years. Copyrights were established by the Statute of Anne of 1710, which secured sole publication rights for authors.

Balancing Interests

Usually the Constitution is about balancing powers, but, to quote directly from the Annotated Constitution (p335):

Underlying the constitutional tests and congressional conditions for patentability is the balancing of two interests—the interest of the public in being protected against monopolies and in having ready access to and use of new items versus the interest of the country, as a whole, in encouraging invention by rewarding creative persons for their innovations.

Protection against monopoly

A critical element of the copyright is that the “exclusive right” it grants is time-limited. The level of protection and how much time granted has (ahem) changed over time. Following from the Statute of Anne’s 14 years, the U.S. Copyright Act of 1790 granted copyright protection for 14 years with the right to renew for an additional 14. The term was repeatedly extended until 1998 Sonny Bono Copyright Term Extension Act extended the duration of copyrights and patents 70 years beyond the life of the author or inventor. This was challenged and upheld in Eldred v. Ashcroft, which found that “limited term” is under Congressional discretion. According to 7 Justices, 70 years, extendable by Congress, was “clearly” not “perpetual” copyright. The Sonny Bono Act expires this year unless Congress acts to extend it. I’ll bet you a Mickey Mouse that they do.

The Constitution says “discovery” rather than “invention,” but you can’t get a patent for the discovery of natural phenomenon. “If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.” So sayeth the decision in Funk Bros. Seed Co. v. Kalo Co. (1948). Despite the Funk finding, there was a period in American history when genes were patented, a worrisome practice put to an end in 2013 by Association for Molecular Pathology v. Myriad Genetics, Inc.

The Copyright Clause does not require that every provision of copyright law be designed to encourage new works. Rather, Congress has broad discretion to determine the intellectual property regulations that it deems best serve the overall purposes of the Clause, including broader dissemination of existing and future American works. Somewhat counterintuitively, and in apparent contradiction of the originality requirement, this was established by Golan v. Holder, which upheld a law that allowed copyright protection of foreign works previously in the public domain.

Encouraging invention

Copyright eligibility requires some level of originality. This has been repeatedly established, but a classic example is Feist Publications v. Rural Telephone Service Co., which determined in 1991 that the white pages were not eligible for copyright. Although a “work” must be “original,” it need not be art. In 1903 Bleisten v. Donaldson Lithographing Co a circus poster (accurately described as “mere advertising” by a lower court) nevertheless received copyright protection. Justice Holmes eloquently reasoned on the nature of art and originality, citing Velasquez, Whistler, Rembrandt, Ruskin, Degas, and others in support of the proposition that the courts should not judge the worth of art.

Patents on the other hand, may be more easily judged. In A. & P. Tea Co. v. Supermarket Equipment Corp. (1950) the Court snarked,

The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end—the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance.

About international practice

The copyright and patent laws don’t apply outside of the U.S., obviously. But there are obvious drawbacks in a globalized economy to limiting protections to just the country of origin. The issue first came up in Brown v. Duchesne (1856) when a French ship utilizing a patented American construction technique was allowed to sail and dock in U.S. waters without penalty. Most recently the principle was reinforced in Microsoft Corp. v. AT&T (2007), when the Court declared: “The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law.”

People who care about intellectual property rights generally agree that sucks. All over the world, inventors and artists want to develop an international system of patent issuance and enforcement. In general, United States policy attempts to harmonize its patent system with that of foreign countries so long as such measures do not diminish the quality of the United States patent standards – which goes further to explain the outcome of Golan v. Holder than arguments about dissemination. By allowing copyright of foreign artists’ work, American artists could hope for greater protections abroad.

Movement toward transnational protection of intellectual property began as early as 1886 with the Berne Convention for the Protection of Literary and Artistic Works, which is still active. In typical “does not play well with others” style, the U.S. didn’t sign on until the Berne Convention Implementation Act of 1988.

What about free speech?

The Copyright Clause is technically a restriction on free speech because it creates a monopoly to market original work. But according to the Annotated Constitution, the Framers:

intended copyright itself to be the engine of free expression.

It makes sense. Many artists can’t afford to create their work if they can’t sell it. By establishing a marketable right for the creator, copyright supplies the economic incentive to create and disseminate ideas.

But checks and balances, right? Copyright law contains two important First Amendment safeguards:

• Copyright protects an author’s creative expression of ideas. But it does not protect the ideas themselves.
• Folsom v Marsh (1841) established the concept of “fair use” of a copyrighted work. Fair use is a concept-in-progress, and super confusing, as any blogger will tell you. But the idea is that in certain circumstances, like criticism, teaching, commentary, news reporting, and parody, it’s okay to copy original work. Eldred v. Ashcroft relates to fair use as much as Sonny Bono; Harper & Row Publishers, Inc., v. Nation Enterprises, (1985) also deals with fair use. Its many reversals as it worked its way through courts illustrates how murky these waters are.

States’ Rights

Surprise! The impact of federal patent/copyright law on states has been the subject of considerable dispute. Police and taxing powers are usually at issue. Patent or copyright-based income is subject to state income tax (the law will always find in favor of taxation) thanks to Fox Film Corp. v. Doyal (1932).

I won’t go into the waffling details, but the Court has been less consistent in questions related to states’ attempts to provide copyright-like protections. The gist seems to be that states can get away with passing laws that resemble patent/copyright protection when the laws promote goals unrelated to intellectual property, but they cannot offer patent-like protection to intellectual creations that federal laws would not protect. How any specific case would land on that balance beam is anyone’s guess.

Trademarks

This is getting long, but a quick note on trademarks (can I get a Knight’s Tale gif? “The marks of me trade”? No.) In the Trade-Mark Cases of 1879 the Court found that trademarks met none of the requirements for copyright or patent. One wonders if a logo designer would agree. Also, how is it then that trademarks are, you know, trademarked? Can’t you get in big trouble for selling your own designs with a more famous logo? Maybe I’ll research that some other day.