The Copyright-Commerce Clause Collision: A Subject Matter Approach

60 Pages Posted: 19 Jul 2013 Last revised: 1 Oct 2014

See all articles by Kevin J. Hickey

Kevin J. Hickey

affiliation not provided to SSRN

Date Written: February 1, 2013


This Article provides a novel theory of how the Constitution’s Copyright Clause limits congressional legislation enacted pursuant to other enumerated powers. The Copyright Clause is both a grant of power and a limitation on the reach of that power: it provides that Congress may create “exclusive Right[s]” in the “Writings” of “Authors,” but that those rights must “promote the Progress of Science and useful Arts” and last only for “limited Times.” Congress possesses other enumerated powers, however, including expansive Commerce Clause authority. As intellectual property substantially affects interstate commerce, may Congress avoid the limitations of the Copyright Clause by legislating pursuant to the Commerce Clause?

Analyzing the structure of the Copyright Clause and the key precedents on inter-Clause conflicts, the Article proposes a subject matter approach to resolve this question. The subject matter approach determines whether the law at issue is truly a “copyright law” that must comply with the Copyright Clause by examining the nature of the material regulated, the actions proscribed, and the scope of the rights granted by the law. The touchstone is whether the challenged law grants authors generalized property rights in expression. By contrast, if a law does not bear these hallmarks of traditional copyright protection, it may be permissible economic regulation within the Commerce Clause power, even if it relates to intellectual property.

Keywords: copyright law, constitutional law

Suggested Citation

Hickey, Kevin J., The Copyright-Commerce Clause Collision: A Subject Matter Approach (February 1, 2013). 82 University of Cincinnati Law Review 1 (2013), Available at SSRN:

Kevin J. Hickey (Contact Author)

affiliation not provided to SSRN

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics