The Overlooked French Influence on the Intellectual Property Clause

Sean M. O'Connor

University of Washington - School of Law

March 15, 2014

University of Chicago Law Review, Forthcoming
University of Washington School of Law Research Paper No. 2014-05

The “IP Clause” of the U.S. Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “science” and “useful arts” do not cleanly map onto the subject matter of current intellectual property systems. As the Supreme Court has noted, under current popular usage of “arts” and “science,” one would expect patents to promote science and copyright to promote arts, yet we know from the historical record that it is exactly the opposite. Other terms, such as “progress” and “discoveries” remain contested. IP Clause interpretations to date rely exclusively on British legal and intellectual antecedents. I argue that the great French Encyclopédie project — a landmark of the mid - eighteenth century Enlightenment — provides crucial context. James Madison, a drafter of the IP Clause, owned and approvingly cited the work. Founding Fathers Thomas Jefferson and Benjamin Franklin were enthusiastic advocates of it. The Encyclopédie has as its two twin goals the promotion of progress in science and in mechanical (useful) arts. I argue that the reliance of early courts and commentators on British antecedents to interpret the federal patent and copyright statutes led to an improperly narrow sense of the context of the IP Clause. Using entries from the Encyclopédie on “Art,” “Science,” “Discoveries,” “Inventions,” “Writers/Authors,” and other relevant topics, I propose a new interpretation of the IP Clause that is more coherent and compelling than existing accounts.

Number of Pages in PDF File: 72

Keywords: IP, IP Clause, Intellectual Property Clause, Copyright Clause, Patent Clause, Progress Clause, IP history, patent history, copyright history, U.S. Constitution, Framers, Founding Fathers, Madison, Diderot, d'Alembert, French Encyclopedie

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Date posted: March 17, 2014 ; Last revised: March 12, 2015

Suggested Citation

O'Connor, Sean M., The Overlooked French Influence on the Intellectual Property Clause (March 15, 2014). University of Chicago Law Review, Forthcoming; University of Washington School of Law Research Paper No. 2014-05. Available at SSRN: http://ssrn.com/abstract=2409796 or http://dx.doi.org/10.2139/ssrn.2409796

Contact Information

Sean M. O'Connor (Contact Author)
University of Washington - School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States
206-543-7491 (Phone)
HOME PAGE: http://www.law.washington.edu/faculty/oconnor

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