The Anti-Monopoly Origins of the Patent and Copyright Clause

84 J. Pat. & Trademark Off. Soc'y 909, 2002

Santa Clara Univ. Legal Studies Research Paper No. 26-14

33 Pages Posted: 29 Jul 2014 Last revised: 31 Jul 2014

See all articles by Tyler Trent Ochoa

Tyler Trent Ochoa

Santa Clara University School of Law

Mark Rose

University of California, Santa Barbara (UCSB) - English

Date Written: 2002

Abstract

The British experience with patents and copyrights prior to 1787 is instructive as to the context within which the Framers drafted the Patent and Copyright Clause. The 1624 Statute of Monopolies, intended to curb royal abuse of monopoly privileges, restricted patents for new inventions to a specified term of years. The Stationers' Company, a Crown-chartered guild of London booksellers, continued to hold a monopoly on publishing, and to enforce censorship laws, until 1695. During this time, individual titles were treated as perpetual properties held by booksellers. In 1710, however, the Statute of Anne broke up these monopolies by imposing strict term limits on copyright, and in the 1730s Parliament twice rejected booksellers' attempts to preserve their monopolies by extending the copyright term. Failing to achieve their ends through legislation, the booksellers sought to circumvent Parliament by arguing that the Statute of Anne was only supplementary to an underlying common-law right that was perpetual; but this effort, too, was rebuffed when the House of Lords determined in 1774 that the only basis for copyright was the Statute of Anne.

In America, too, anti-monopoly sentiment was strong; and when the Constitution was being drafted, the Framers, influenced by the British experience, specified that patents and copyrights could only be granted "for limited Times." The Patent and Copyright Acts of 1790 copied the limited terms of protection provided by the Statute of Monopolies and the Statute of Anne. As in England, advocates of perpetual copyright argued that statutory copyright merely supplemented an existing perpetual common-law right. But following the precedent set by the House of Lords, in 1834 the U.S. Supreme Court rejected the commonlaw argument and perpetual copyright, confirming the Framers' view that patents and copyrights should be strictly limited in duration in order to serve the public interest.

Suggested Citation

Ochoa, Tyler Trent and Rose, Mark, The Anti-Monopoly Origins of the Patent and Copyright Clause (2002). 84 J. Pat. & Trademark Off. Soc'y 909, 2002, Santa Clara Univ. Legal Studies Research Paper No. 26-14, Available at SSRN: https://ssrn.com/abstract=2473390

Tyler Trent Ochoa (Contact Author)

Santa Clara University School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-554-2765 (Phone)
408-554-4426 (Fax)

Mark Rose

University of California, Santa Barbara (UCSB) - English ( email )

United States

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