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The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp.
Malla Pollack
Seattle University Law Review
The 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[.] 92
The Intellectual Property Clause, while relatively clear on its face, lacks a clear, contemporaneous pedigree or explication. However, nothing suggests the words "limited times" were intended in some counterintuitive sense for policy reasons.93 Nor does the current vision of the Clause's policy justification counsel interpreting it counterintuitively. 94 According to James Madison's notes, David Brearley suggested the final wording of the clause to the Constitutional Convention on September 5, 1787, speaking for the Committee on Unfinished Business.95 Brearley did so in response to Madison's suggestion "[t]o secure to literary authors their copyrights for a limited time," and also to two suggestions by Charles C. Pinckney: "[t]o grant patents for useful inventions," and "[t]o secure to authors exclusive rights for a certain time." 96 We have no record of any discussion about the clause. There was no debate on the floor of the Constitutional Convention, and minutes of the committee deliberations, if made, have not survived.97 "The matter, on its merits, apparently aroused substantially no controversy either in the Convention or among the States adopting the Constitution." 98
Madison's apologia in the Federalist is silent on time limitations:
The referenced "insistence" of the Continental Congress, however, was not silent on the matter of time periods. The Congress recommended that the several states pass copyright legislation creating an initial term of protection of "not less than fourteen years" followed by a renewal term of "not less than fourteen years." Thus, the Continental Congress recommended a lower limit, without mentioning the desirability of an upper time limit, but clearly assumed that a time limit would be named in each statute. 100
By the time of the Constitutional Convention, most of the states had passed copyright legislation. All such statutes contained express term limits. 101 Patents in the pre-Constitution United States also seem to have been granted only for set periods of time. 102 While the Continental Congress did not request the states to create patent legislation, South Carolina's copyright statute also granted patent rights:
Only two scholars have suggested a reason for the constitutional phrase "limited times" 105 that is beyond the obvious intention of eventually moving writings and discoveries into the public domain. One such scholar, William Winslow Crosskey, points out that at the time of the Constitutional Convention, English law on common-law copyright in published works was unclear. Perhaps the majority view was that perpetual common-law rights originally existed, but had been eliminated by statute. However, the statute's coverage of the American colonies was undecided. The Framers therefore gave Congress the power to create rights for "limited times" to effectively destroy any argument for the continued validity of perpetual common-law copyright entitlements. Copyright was placed in the same clause as patent to emphasize the statutory nature of the intended right; English law was settled that monopolies based on invention were creatures of the government. 106 Crosskey considers the Intellectual Property Clause an especially clear instance of the Constitution's repeated enumeration of specific powers for the purpose of limiting those powers. 107
The second scholar, John F. Whicher, contributes a more detailed look at the information available in the United States at the time of the Constitutional Convention and the state ratifying conventions. While he accepts Crosskey's assertion that the clause primarily intended to limit the duration of federally creatible rights, he asserts that this limit was not intended for the states. 108
My argument is not that Crosskey is necessarily correct in his reading of the Framers' motives. I merely point to the fact that no scholar has supplied a good argument against the facial meaning of the phrase "limited times." The Supreme Court has never held that the Intellectual Property Clause requires authors and inventors be granted only time-limited rights. The Court has, however, recognized this in dicta:
The Court has also repeatedly stressed the limited nature of the copyright monopoly. "We have often recognized the monopoly privileges that Congress has authorized . . . are limited in nature and must serve the public good." 110 While this quote refers to statutory limitations, it relies on Feist Publications, Inc. v. Rural Telephone Service, Inc.,111 which clarified the Constitutional nature of the statutory requirement of originality. 112
Similarly, the Court's patent jurisprudence consistently mentions that "[t] he [patent] clause is both a power and a limitation"; 113 "the [Patent] Clause contains both a grant of power and certain limitations upon the exercise of that power. Congress may not create patent monopolies of unlimited duration . . . ." 114
The Court's dicta on time limitations reflects its insistence that the Intellectual Property Clause be interpreted in harmony with the stated purpose of the clause. "The primary objective of copyright is not to reward the labors of authors, but '[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." 115 The ability to freely appropriate from another's work is "the essence of copyright and a constitutional requirement." 116 "The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit." 117
Unlike the Supreme Court, the Ninth Circuit has decided a case concerning the constitutional phrase "limited times" in Marx v. United States. 118 This case involved a radio script registered under the 1909 Copyright Act. 119 The 1909 Act expressly allowed the author to copyright works "not reproduced for sale" if the works were registered with the federal Copyright Office. The Act expressed the copyright term as twenty-eight years from "the date of first publication," which is defined by the Act as the date on which copies were "placed on sale, sold, or publicly distributed." 120
The Marx radio script had never been sold or distributed publicly; it had been shared only with possible performers and related radio functionaries. The alleged infringer argued that the absence of a copyright term for works neither sold nor distributed rendered protection of the work unconstitutional.121 The court, invoking the maxim that "[l]egislative enactments are to be construed, if possible, in such [a] way as to render them constitutional," 122 set a time limit congruent with the rest of the statute: twenty-eight years from the date of deposit. 123 Could "limited times" apply only to patent or only to copyright? I think not. First, the Supreme Court dicta quoted above, while not determinative, is drawn from both patent and copyright cases. Second, while Crosskey's historical reconstruction leaves open the possibility that copyright limits were more important to the Framers than patent limits, a better explanation may be that the Framers merely thought a "perpetual rights" claim was more likely to be raised under copyright. On the opposite side of the argument, while both Madison and Pinckney's "original" suggestions of copyright included time limits, Pinckney's "original" suggestion of patent did not. 124 The Convention's finished text, however, seems to place time limits on both.
Certainly, the Intellectual Property Clause has been read in different ways, but the confusion about the Clause's meaning relates only to the distribution of "Science" and "the Useful arts." The legislative history of the 1952 Patent Act describes the clause as two provisions merged into one. The purpose of the first provision is to promote the progress of science by securing for limited times to authors the exclusive rights to their writings, the word "science" in this connection having the meaning of knowledge in general . . . . The other provision is that Congress has the power to promote the progress of the useful arts by securing for limited times to inventors the exclusive right to their discoveries. 125 The House Report accompanying the 1909 Copyright Act, however, linked copyright to both "science and the useful arts." 126 Furthermore, the Patent Act of 1793127 speaks of "art or science," as does the Patent Act of 1836. 128
The phrase "limited times" seems firmly linked to both sub-clauses. In fact, the science/useful arts dispute is viable only because the Intellectual Property Clause has two choices as to both the category of knowledge promoted and the category of persons being assisted. The third double in the clause, "[w]ritings" and "[d]iscoveries," is clarified by the term "respective," which specifies the relationship of these alternatives to the immediately preceding word pair. The remainder of the wording in the clause simply lacks alternatives: "Congress shall have the power . . . [t]o promote [a & b] by securing for limited times to [c & d] the exclusive [r]ight to [c & d's] respective [e & f]."129 Unless the sentence sections lacking alternatives apply to both alternatives of each category, writing the sentence in parallel construction makes no stylistic sense. The final question to consider is the meaning of "limited times."130 If the term is interpreted intuitively, Congress must protect intellectual property for a set term limit, for example, a period of seventeen years. Extending the term to an "unrealistically" long time, for example, 1000 years, might be held unconstitutional as "the equivalent of perpetual protection." 131 Intuitive interpretations, however, may merely signal that the term has not yet been challenged; lack of challenge may merely signal lack of a party with sufficient motivation to raise that challenge. A classic example of this is Tushnet's discussion of interpretations of the thirty-five year age requirement for the President. An interested presidential candidate could claim that the limit does not mean physical age, but rather the maturity level of an eighteenth-century thirty-five year-old, or age including former reincarnations. 132
This logic can be applied to "limited times." The intuitive interpretation for the term is a "set number of years." However, the Intellectual Property Clause is a bargain between the public on one side and authors and inventors on the other: exclusive rights for a short term in return for perpetual free use by the public after that term. If the term is equal to or greater than the period during which the res has value (economic or otherwise), has the public received its quid pro quo? Arguably a seventeen-year patent term or copyright term of the author's life plus fifty years is much longer than the economic life of the res in rapidly changing fields such as computer programming.
The above argument shortens the allowable term. What about a reading lengthening the term to practical infinity? Effective January 1, 1978, Congress set the copyright term in reference to the life of the author. 133 One law review article claims that life-plus terms are unconstitutional. 134 The issue, seemingly, has never been litigated. But human lives are, after all, relatively short. Would it be allowable for Congress to set the patent term in relation to the economic life of each individual patent? Would this change if the economic life of a particular patent seemed much longer than several human lives, perhaps longer than the above mentioned 1000 years? A patent may retain value long after the particular invention claimed ceases to be valuable when used independently. Patent involves the right to exclude others from using, manufacturing, or selling, etc. the invention. 135
Often basic inventions are valuable because they are necessary for incorporation into more advanced technology. Consider an invention like the wheel and axle defined in broad terms: 136 a round, physical object able to be placed on a support running through its center, the support not blocking the wheel's movement. Dependent claims could cover, for example, (1) using the wheel so that it may intersect with other wheels, other moving parts, and other non-moving items, (2) wheels with smooth outer surfaces, and (3) wheels with tooth-edged outer surfaces. As a break-through invention, the wheel would be allowed broad, exclusive power.137 A corporation which owned such a patent could survive indefinitely on the license fees from, for example, any motor with a gear or any object that moved with wheels on a track or flat surface. Could Congress then set the patent term as the period during which the invention increases in usefulness or economic worth? If so, then the holder of the patent on the wheel could claim that this period had not ended until an alternative technology existed and had started taking over a large share of the wheel market. While this is arguably constitutional, I doubt it would convince a court any more than Tushnet's reincarnated guru. 138
What about tying the life of a patent or copyright to the life of a trademark? For the subset of writings and discoveries that are used as trademarks, Congress could stipulate that the patent/copyright grant be a certain percentage of the life of the mark. This would present several problems. First, trademarks usually die only when they are abandoned. 139 Even when going out of business, the holder of a mark may sell it to any other firm if the holder also sells certain other firm assets. 140 The "limited time" would therefore last as long as the mark-holder wished. Second, if Congress set the "limited time" at some percentage of the mark's life, the period would not be calculable until after the mark died, thus rendering such a term practically impossible. Third, tying the life of a patent or copyright to the life of a trademark may be one of the few Congressional decisions that would not pass a judicial rationality test—unless by-passing a limit in the text of the Constitution is an acceptable governmental purpose. Finally, allowing a patent or copyright term for the full life of a mark does not advance the progress of science and the useful arts because it does not result in an enlargement of the public domain.
One could make the plain language argument that the plural "times" allows multiple time periods—with "limited" constricting each separate "time" but not the number of such limited-length time periods. The original manuscript of the Constitution shows the clause was first written to allow "a limited time," but was later changed to read "limited times." 141 The suggestion that the plural "times" allows infinite grants of consecutive "limited" periods is conceivable, but strained. The Framers could have rationally chosen to bar a grant of unlimited time periods, while allowing numerous successive grants of limited time periods, when such grants are warranted by various conditions. But the Framers generally avoided that level of detail, leaving it for future legislation. Furthermore, this reading would not save the incontestability provision which gives unlimited temporal protection in one grant.
Other readings are possible. For instance, the change to "limited times" may have been intended to allow renewal terms. 142 The change could also have been stylistic polishing for parallelism (the right is being allowed to two different sets of recipients: authors and inventors). But the modern notion of parallelism suggests that "right" should have been "rights." Perhaps the best reading is that the change was made to clarify that the limited time granted inventors does not have to be of the same length as the limited time allowed authors. 143 However, all these suggestions are guesses unbacked by historical evidence. 144
Winter 1995
Copyright (C) 1995 Seattle University Law Review; Malla Pollack
B. The Meaning of "Limited Times" in the Intellectual Property Clause
The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain to be a right at common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision on this point by laws passed at the insistence of Congress. 99
And be it further enacted by the authority aforesaid, That the inventors of useful machines shall have a like exclusive privilege of making or vending their machines for the like term of fourteen years, under the same privileges and restrictions hereby granted to, and imposed on, the authors of books. 103
In other states, patents were granted individually by special acts of the legislature. While the lengths of the grants varied, all seem to have been for set periods of time. 104
The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest. . . . The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. 109
Has the clause evolved into a new meaning? I do, emphatically, believe in an "evolving Constitution,"145 but such evolution does not undercut the importance of temporal limits. The Court continues to view eventual dedication of works to the public domain as the core purpose of the clause. Perhaps under a rigorous economic analysis the current statutorily-set time limits are too long.146 To make this decision we might need to quantify non-quantifiable public domain interests possessed by readers and gadget-users, not merely by later writers and inventors. Certainly we would need to integrate numerical representations of the current market into the economists' theoretical models 147—something neither congressional committees nor courts seem to do. 148 The constitutional phrase "limited times" should be interpreted to mean that Congress' exclusive grants to authors and inventors must be temporally finite. 149
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