The Constitutional Clause

The first reference to copyright at the Constitutional Convention is a May 28, 1787, proposal by Charles Pinckney of South Carolina that the Constitution include a clause giving the federal government the power “to secure to Authors the exclusive right to their Performances and Discoveries.”67 No action was {Page 23} taken on the Pinckney proposal, nor was reference made to the subject of copyright in the August 6, 1787, draft of the Constitution reported out by the Committee on Detail. Given the pressing concerns of the times, it should not be surprising that copyright protection was not immediately taken up. Even ardent copyright advocate James Madison noted, in an April 1787 paper he entitled “Observations of J.M.,” that, although the “want of national uniformity” in the laws concerning literary property was a matter to be taken up, the issue was of “inferior moment.”

Another possible explanation for the omission is that some delegates opposed the statutory establishment of monopolies. An exchange of letters between Thomas Jefferson and James Madison in 1788 raises this point. In a letter sent to Madison on July 31, 1788, from Paris, Jefferson wrote:

The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.

In a letter to Jefferson dated October 17, 1788, sent from New York City, Madison replied:

With regard to monopolies they are justly classified among the greatest nuisances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the Public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our Governments, than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many and not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.

On August 18, 1787, three proposals were made to include intellectual property rights within the enumerated national powers. The first was a new proposal by Pinckney “to secure to authors exclusive rights for a limited time.”68 James Madison made two alternative proposals: (1) “to secure to literary authors their copyrights for a limited time”; or (2) “to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries.”69

Madison’s and Pinckney’s proposals were referred to the Committee on Detail. At the end of August, the Committee of Eleven considered them. We know nothing about the substance of the committee’s discussions because they were conducted in secret, but some indication of the committee’s reasoning may be derived from Madison’s comment in the Federalist Papers:

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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 provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.70

At least four important principles may be gleaned from this short statement. First, copyright was a right recognized as common law. Second, the effectiveness of granting exclusive rights to authors as an incentive to creation was well acknowledged. Third, copyright must be federal in order to achieve, in practice, effectiveness of the grant. Fourth, the public interest fully coincides with the interest of authors having exclusive rights in their works. The source of this harmony between public and private interests is not difficult to discern once we strip away our present-day, consumer-oriented perspective: in place of government control, the Founding Fathers believed private property, including intellectual property, was the best way to ensure the triumph of democracy over the tyranny of the aristocracy. As former Register of Copyrights Abraham Kaminstein observed:

The basic purpose of copyright is the public interest, to make sure that the wellsprings of creation do not dry up through lack of incentive, and to provide an alternative to the evils of an authorship dependent upon private or public patronage. As the founders of this country were wise enough to see, the most important elements of any civilization include its inde’pendent creators – its authors, composers and artists – who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright is the only assurance we have that this creative activity will continue.71

On September 5, 1787, the Committee on Detail reported the proposed copyright and patent sections of the Constitution to the Congress: “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.”72 The clause was unanimously agreed to and incorporated in the Constitution as adopted by the Convention on September 17, 1787. Congress approved the Constitution on September 28, 1787, and referred it to the states for ratification. With the ratification of New Hampshire on June 21, 1788, the Constitution became effective.

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The language used in Article I, Section 8, clause 8 is essentially an amalgamation of Pinckney’s proposal with Madison’s second proposal. The provision does not, however, use the terms “copyright” or “patent,” and, therefore, does not limit Congress’s power to legislate in the field of intellectual property except insofar as the subject matter must be a “writing”73 or a “discovery,” created by an “author” or “inventor,” and the protection is for a “limited time.” Given that none of the four proposals for a copyright clause contained the term ultimately adopted – “writings” – one may ask whether “writings” is meant to be more restrictive or broader than the earlier proposals. With no evidence either way, the best we can do is note that because the term was added by the Committee on Detail without further referral to or comment by the Convention, the change likely was one of form, not substance.74

Next section: The First Copyright Act

67 3 Farrand, Records of the Continental Congress 122, 609. On May 2, 1783, a committee set up under the Articles of Confederation concluded that “nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius.” 24 Journal of the Continental Congress 211 (May 2, 1783). Because the Articles of Confederation did not authorize the Continental Congress to pass a federal Copyright Act, the Congress recommended that the states pass their own laws, pending a later federal Act under the Constitution. See further discussion in Chapter 2, text at notes 1-11.

68 Farrand, Records of the Federal Convention 325. In revisions of his notes of the debates, Madison crossed out the word “limited” and inserted “certain.” Nothing is known about the reason for this change.

69 Id.

70 The Federalist No. 43 at 270-271 (Rossiter ed. 1961).

71 Testimony of Register of Copyrights Abraham Kaminstein, Copyright Law Revision: Hearings Before the Subcomm. on Patents, Trademarks, and Copyrights of the Comm. on the Judiciary on S. 1006, 89th Cong., 1st Sess.65 (1965). See also Register Kaminstein’s further remarks in Copyright Law Revision Part 6: Supplementary Report on the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess.xiv-xv (House Comm. Print 1965).

72 2 Farrand, Records of the Federal Convention 505, 509.

73 See Chapter 2, text at notes 32-52.

74 See The Meaning of the “Writings” Clause of the Copyright Clause of the Constitution, Copyright Office Study No. 3, 86th Cong., 1st Sess.48 (Sen. Comm. Print 1960).