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Congress's Power to Promote the Progress of Science: Eldred V. Ashcroft


Lawrence B. Solum


Georgetown University Law Center

October 7, 2002

Loyola of Los Angeles Law Review, Vol. 36

Abstract:     
The Intellectual Property Clause of the United States Constitution grants Congress 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." This essay investigates the issues raised by Eldred v. Ashcroft, in which the Supreme Court may decide whether the Copyright Term Extension Act (CTEA) exceeds Congress's authority under that clause. The essay frames the issues in Eldred v. Ashcroft by discussing the history of copyright legislation in general and the CTEA in particular and then summarizing the procedural history of Eldred v. Ashcroft. The essay then undertakes a detailed investigation of the text of the Intellectual Property Clause, with a special emphasis on the interpretation of the Clause by the first Congress and early judicial decisions. Three elements of the constitutional text have important implications for the Supreme Court's decision in Eldred. First, the Copyright Clause empowers Congress to pursue the goal of promoting the progress of science. This goal is integral to the grant of power to Congress and does not constitute a hortatory preamble. Second, the meaning of science that best coheres with the constitutional text and the original understanding can be glossed as systematic knowledge or learning of enduring value. This understanding of the meaning of "science" is confirmed by Clayton v. Stone, the earliest federal case to undertake a substantive evaluation of the meaning of the phrase "promote the progress of science." Third, if the limited times restriction is to impose a meaningful limit on Congress's power, the most plausible constructions are inconsistent with either a term of life plus seventy years or with retroactive extensions, or both. If the phrase "limited times" is construed to limit terms in relationship to the grant of exclusive rights to authors, then a grant of life plus seventy years is, in relationship to the outer limits of the productive life of authors, unlimited. If the phrase "limited times" is construed to require definite or certain terms, then the retroactive extension of terms on a wholesale basis is unlimited. Finally, the essay provides a reader's guide to the issues raised both by the parties and by scholars. Among these topics are the tier of scrutiny to be applied to congressional exercise of the copyright power, the question whether retroactive extensions of copyright terms can promote the progress of science, an analysis of the economic effects of the CTEA's extensions of copyright terms, a discussion of the "limited times" constraint in the intellectual property clause, and an investigation of the first amendment implications of the CTEA.

This article and the scholarly work upon which it comments may be found in the symposium, "Eldred v. Ashcroft: Intellectual Property, Congressional Power, and the Constitution," in Volume 36 of the Loyola of Los Angeles Law Review.

Number of Pages in PDF File: 83

Keywords: Copyright Term Extension Act, Clayton v. Stone, retroactive extensions

JEL Classification: K39, O34, O38

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Date posted: October 12, 2002  

Suggested Citation

Solum, Lawrence B., Congress's Power to Promote the Progress of Science: Eldred V. Ashcroft (October 7, 2002). Loyola of Los Angeles Law Review, Vol. 36. Available at SSRN: http://ssrn.com/abstract=337182 or http://dx.doi.org/10.2139/ssrn.337182

Contact Information

Lawrence B. Solum (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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