Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress's Intellectual Property Power

Abstract:     
The Article elucidates the Intellectual Property Clause by studying the neglected record from the Constitutional Convention of 1787 pertaining to it. This record consists of proposals by James Madison and Charles Pinckney for congressional power to grant patents, copyrights, and encouragements (bounties), and to establish universities. By tracking the textual transition from the initial proposals to the eventual text of the Clause and by putting this transition in its contemporaneous context, this Article makes two major contributions to our understanding of the Clause.

First, the Article takes a stand in a current controversy by providing three direct indications that the Framers intended the first part of the Clause - to promote the progress of science and useful arts - to be a limitation on Congress's intellectual property power. It thus refutes a widely held belief that the Framers intended this language as a non-binding preamble. Second, the analysis solves a current puzzlement among courts and commentators about the enigmatic ends/means structure of the Clause. It shows that the Clause's unique text reflects the Framers' intent to have each of the Clause's parts participate in defining and limiting the power it confers.

The Article reviews the applications of its findings for originalism, for different readings of the Clause, and for recent (e.g., Eldred v. Ashcroft) and pending (e.g., Kahle v. Gonzales, Golan v. Gonzales) constitutional intellectual property litigation. It ends by suggesting ways in which the legal community can move toward forming a concept of progress as a constitutional limitation.

Keywords: intellectual property, intellectual property clause, progress, progress clause, copyright, legal history, constitutional law, constitutional interpretation, original intent, originalism

JEL Classifications: H41, K20, O34

Accepted Paper Series