The Democratic Public Domain: Reconnecting the Modern First Amendment and the Original Progress Clause (A.K.A. Copyright and Patent Clause)

Abstract

Empirical investigation of public usage of the word "progress" in the 1789 United States demonstrates that the word meant "dissemination." The original meaning of Article One, Sec. 8, cl. 8, therefore, is that Congress has the right to grant only such temporally limited exclusive rights in writings and new technology as encourage the dissemination of knowledge and new technology to the population. This short article explains the major differences between current United States positive intellectual property law and the logical dictates of this original constitutional meaning. Additionally, the article asserts that the original meaning of clause 8 supports modern calls for a public-empowering First Amendment doctrine, as suggested by scholars such as Jack M. Balkin.

Keywords: Copyright, patent, intellectual property, original meaning, constitution