The Intellectual Property (IP) Clause of the U.S. Constitution, which empowers Congress to enact both patent and copyright legislation, touches the daily life of every American. Yet the clause’s history and admission into the Constitution remain understudied. After all, the clause was not debated at the Constitutional Convention, nor did it receive significant scrutiny during the ratification debates. This has led some scholars to conclude that the clause was a constitutional afterthought. Such assertions, however, are incorrect. On the contrary, the IP Clause represents the culmination of a complex and historically significant Anglo-American legal tradition.
The seeds of the American IP system originated in the 1623 English Statute of Monopolies. This law banned the monarch from granting any monopoly with one exception: The monarch could grant letters patent for new inventions so long as the monopoly benefited society and lasted no longer than fourteen years. Thus, the law set forth the two features that would define Anglo-American IP protection—it provided individuals an exclusive right to their works for a limited duration.
Nathaniel Ward of Ipswich effectively transplanted this law onto the American continent in 1641 when he incorporated an IP clause into the Massachusetts Body of Liberties. Reflecting the Statute of Monopolies, the law stated, “No monopolies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countr[y], and that for a short time.” Inventor Joseph Jenks Sr. was one of the first to take advantage of this law, receiving a fourteen-year patent for the invention of a faster water-mill engine in 1642. Thirty years later, in 1672, Massachusetts would also grant the first American copyright to John Usher, a Massachusetts printer.
Massachusetts, however, was not the only colony that sought to protect intellectual property. In fact, colonial governments granted patents and copyrights throughout the eighteenth century. Such grants typically were made through special acts of the legislature that passed upon an author or inventor’s petition. And these grants typically retained the core features of Anglo-American IP protection. For instance, Peter Guerard petitioned the South Carolina legislature in 1691 and received a two-year patent for his invention of a rice husking machine. In another instance, the Rhode Island legislature granted James Lucena a ten-year patent in 1761 for the manufacture of castile soap.
After the Revolutionary War, both the national and state governments maintained an intimate interest in IP. Massachusetts enshrined IP protection in its post-colonial constitution. The other states, in contrast, continued to protect IP through an ad hoc system of special legislative acts and resolutions. Still, the basic form of grants remained consistent: an exclusive right for a limited duration.
But as the American economy became increasingly interstate, the need for IP legislation grew. American authors, led by Noah Webster, launched a national campaign to lobby both the federal and state governments for copyright legislation. Spurred by these efforts, Congress appointed a special committee to report on literary property in the United States. This committee consisted of Hugh Williamson, Ralph Izad, and the future coauthor of the IP Clause, James Madison. Though the committee’s report did not result in any federal legislation, Congress passed the committee’s proposed resolution on May 2, 1783. The resolution recommended that states pass copyright statutes that would protect an author’s work “for a certain time not less than fourteen years.”
Within two years of this resolution, twelve of thirteen states had passed IP legislation. South Carolina’s 1784 IP law is notable, as it represents the first American law to equate copyright and patent protections. And James Madison had an opportunity to author Virginia’s copyright statute just two years before he would coauthor the IP Clause at the Constitutional Convention. Notably, both statutes demonstrate the two hallmark features of Anglo-American IP protection.
Despite the codification of state-based IP systems, American IP protection remained unruly. Varying state laws created a costly and burdensome barrier to authors and inventors seeking to secure their works throughout the Union. Indeed, while preparing for the Constitutional Convention, Madison anticipated the need for a national IP system.
The Constitutional Convention, however, did not address the issue of IP protection until August, nearly three months after the Convention began. This should not come as a surprise, as issues of constitutional structure occupied the delegates’ attention. But once the Convention largely settled such debates, Madison broached the subject, proposing a copyright clause on August 18. The same day, Charles Pinckney of South Carolina suggested a patent clause. The Convention assigned these proposals to the Committee on Unfinished Parts, on which Madison served. And twenty-eight days later, on September 5, the Committee reported the IP Clause to the Convention.
The clause passed without debate, suggesting widespread agreement on the clause’s structure and importance. Fifty-five delegates attended the Constitutional Convention. Over half had legal training, and more than forty were deeply involved in their state governments. Thus, over half of the delegates likely held some understanding of Anglo-American patent law, and almost all had helped enact state copyright legislation passed in the years preceding the Convention. Moreover, the shortcomings of a state-based IP patchwork were evident; as Madison would argue in Federalist 43, “The states cannot separately make effectual provision for [IP protection], and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.” With the delegates’ knowledge of and experience in IP law, and with the evident failures of state-based copyright systems, there was little reason to debate a measure so generally agreed upon.
The IP Clause ultimately represents the flowering of the Anglo-American tradition of IP law. Unique among Congress’s Section 8 powers, the clause represents “the only instance wherein the delegates prescribed a specific mode of accomplishing the particular authority granted.” While the clause provides Congress the power “to promote the progress of science and useful arts,” it requires that Congress do so “by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Thus, the long-established Anglo-American practice of providing authors and inventors an exclusive right to their works for a limited duration became enshrined in the American Constitution.