Happy Constitution Day!
Today marks the very date—223 years ago—the US Constitution was ratified. Since 2004, this date has officially been known as Constitution Day, and has been set aside to encourage education about the framework of law that serves as the foundation for US government.1The more cynical among us would say instead that any educational institution receiving federal funds is required to provide educational programming on the Constitution on this day.
US copyright (and patent) law stems from the Constitution. Article 1, Section 8 reads, in part:
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.
To celebrate the occasion, let’s take a look at how this clause made it into the Constitution on September 17, 1787.
Writing the Constitution
We’ll begin with a look at the drafting of the Constitution as a whole. We probably recall from high school the general story of what lead to the drafting of the Constitution.2I apologize, as my retelling of this general story is also primarily based on what I recall from high school (and Wikipedia). The United States of America, having successfully secured independence from England, were operating under the Articles of Confederation. Some founders—including George Washington, Alexander Hamilton, and James Madison – felt the centralized government established by the Articles was inadequate to address the many challenges facing the new nation. In September 1786, delegates from five of the states met to discuss ways to remedy the defects in the federal government, resulting in the recommendation for a broader convention, to be held in Philadelphia the following May. But while the Philadelphia Convention began under the premise of revising the Articles, its purpose quickly became the creation of an entirely new form of government for the thirteen states.
“Quickly” is the operative word for a lot of the work done at the Convention. Looking at the timeline of the Constitution’s drafting, I’m astonished at how fast a group with many diverse interests were able to achieve a result with such a broad purpose. The purpose was not simply to address the mundane concerns of interstate squabbles and foreign trade, but to come as close as possible to an ideal form of republican government. The delegates looked at Greek, Roman, Renaissance, and Enlightenment philosophers as well as the experiences of English government and the thirteen state governments to craft a new framework. The result was, according to historian Forrest McDonald, “a new form of government, unprecedented under the sun. Every previous national authority either had been centralized or else had been a confederation of sovereign states. The new American system was neither one nor the other; it was a mixture of both.” It is also a system that, for all its criticisms, is still chugging away 223 years later.
The Convention kicked off May 14, 1787.3Though due to the difficulties of travelling at the time, a quorom wasn’t present until May 25. On June 23, a Committee on Detail was established to draft a document that incorporated the various plans and proposals from the Convention. The Committee presented the first draft of the Constitution to the Convention on August 6. On September 8, a Committee on Style was created to incorporate changes brought up by delegates after discussing the first draft and revise the text of the Constitution. This Committee presented the final draft to the Convention on September 12, who ratified and signed it on September 17. And that’s how you make an America.
The Copyright Clause
Now that we have a general idea of how the Constitution was drafted for context, let’s see how the copyright clause became a part of the Constitution. The historical record presents some challenges to this task. The Convention was held in secret, and most of our knowledge of its proceedings come from the official Convention journal of secretary William Jackson as well as a private journal kept by Madison. From those sources, we see that the first draft of the Constitution did not include the copyright clause. A number of proposals for additional Congressional powers were made following the first draft. These proposals and other pending issues were referred to a Committee of Eleven, which revised them and submitted final versions to the delegates for approval. Among the recommendations of the Committee was granting to Congress copyright power, a recommendation that was unanimously agreed to by the delegates without debate. The recommendation matched exactly the language in the final draft of the Constitution.
In the discussion above and below, I’m drawing largely on the tremendous work done by law professor Dotan Oliar. Oliar has carefully examined historical records to piece together the story of the Constitution’s copyright clause. I highly recommend his publications Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power and The (Constitutional) Convention on IP: A New Reading for all the details of what I’m summarizing here.
Oliar traces the Committee of Eleven’s proposed copyright clause back to eight separate proposals for additional Congressional powers made by both Madison and South Carolina governor Charles Pinckney on August 18.4Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power, pp 1805-10. They proposed that Congress have the power –
- to secure to inventors of useful machines and implements the benefits thereof for a limited time
- to grant patents for useful inventions
- to secure to literary authors their copyrights for a limited time
- to secure to authors exclusive rights for a certain time
- to establish a university
- to establish seminaries for the promotion of literature and the arts and sciences
- to encourage by proper premiums and provisions the advancement of useful knowledge and discoveries
- to establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades, and manufactures
At first glance, some of these proposals seem to have little to do with the power that was eventually adopted. However, Oliar convincingly argues that these proposals best explain the clause’s “ends-mean” structure. The “ends” of the clause is the promotion of “the progress of the useful arts and sciences.” The “means” by which this end is achieved is the “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” None of the proposals above combine both the specific end and mean of the final clause. Instead, they form a pool of various ends and means that were considered by the Committee, which rejected some means—universities and premiums, for example – in favor of exclusive rights in writings and discoveries and combined the ends. Because the historical record is largely silent on how the Committee settled on its final language, we cannot know for sure what role these eight proposals played, but Oliar presents a reasonable hypothesis.
Motivation for Including the Clause
Similar to the lack of record regarding the textual origins of the clause, the historical record regarding the motivation for including the clause is scant. Perhaps it was included to reflect the idea that, as Convention delegate James Wilson suggested, the primary objective of government is the “cultivation and improvement of the human mind.” More likely, it reflected what was by then a well-established practice. The laws and traditions of the young United States stemmed primarily from England. English government was in the business of granting copyright since the Statute of Anne in 1710, and many of the individual colonies continued this practice.
The only mention of the clause in the Federalist Papers—a series of articles written by Hamilton, Madison, and John Jay advocating the ratification of the Constitution—comes in Federalist No. 43. There, Madison writes:
The utility of this power will scarcely be questioned. The copyright of authors has been 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. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.
This suggests that there was little debate over the granting of copyright itself. More important to Madison was the fact that the federal government alone should hold this power, rather than the individual states.
Whatever the origins, this clause in Article 1, Section 8, of the Constitution provides the foundation for all US copyright law today. Debate over its meaning and intent, its scope and its structure, continues today, 223 years after it was written.
References
| ↑1 | The more cynical among us would say instead that any educational institution receiving federal funds is required to provide educational programming on the Constitution on this day. |
|---|---|
| ↑2 | I apologize, as my retelling of this general story is also primarily based on what I recall from high school (and Wikipedia). |
| ↑3 | Though due to the difficulties of travelling at the time, a quorom wasn’t present until May 25. |
| ↑4 | Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power, pp 1805-10. |
Allow me to translate:
“The utility of this power will scarcely be questioned.”
“As we have seen in those states that have already granted them, monopolies are most lucrative to those of our acquaintance who would continue to enjoy them.”
“The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law.”
“The people are thus empowering Congress to secure their natural right (not to grant a privilege such as the military instrument we term ‘Letters of Marque’).”
“The right to useful inventions seems with equal reason to belong to the inventors.”
“A patent is as much a monopoly as copyright, but we’ll sanction them both with the plausible deniability obtained through Britain’s apparent recognition of copyright a natural right.”
“The public good fully coincides in both cases with the claims of individuals.”
“Queen Anne used the pretext that granting such privileges would be good for the learning of her subjects, so we’ll elaborate in terms of progress to science as well as the useful arts.”
“The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”
“Obviously these grants of monopoly cannot be properly exploited unless they are enforceable in ALL states”.
“So chaps, I’ll just bung this clause in about securing this self-evident right, which will thus offend none of our peers’ sensibilities. I’ll then copy the Statute of Anne (us now being outside her jurisdiction), prepare an unauthorised derivative to our taste, and then enact this copyright as a fait accompli before anyone realises it’s a monopoly that derogates from our citizen’s liberty.”
I read Mr. Oliar’s two articles with the hope that they might provide some additional modicum of insight into the origins of what was enacted as Article 1. Section 8, Clause 8. Alas, my hope was quickly dashed as it became only too apparent that an investigation into “history” quickly devolved into an explication in “grammar”.
If only Mr. Oliar had taken the time to read and reflect upon the original copyright and patent acts of 1790, he may very well have been forced to reconsider the general tenor of his two articles.
An important principle embraced by each of the acts was the clear requirement that “public disclosure” ensue in order for the acts to have any force and effect. I am of the opinion it was no accident that the introduction to the Copyright Act of 1790 mirrored exactly the introduction to the Statute of Anne, and that the introduction provides valuable insight into the purpose underlying the phrase “To Promote the Progess of Science and the Useful Arts”…the promotion of teaching and education by the publication of works of authorship and the public disclosure of inventions such that the public at large would be able to avail itself of the information thereby presented.
In this regard it may fairly be said that patent law has remained, more or less, generally true to it roots. The same, however, cannot necessarily be said of copyright law to the extent of its wholesale amendment by the Copyright Act of 1976 and its extension of the law to unpublished works. The former adds to public discourse. In the limited circumstance of unpublished works the same cannot be said of the latter.