Commerce and Copyright

> > that since the Constitution has a specific IP clause, it would be
> > inappropriate to let Congress rest its power in this area on the
> > Commerce clause? This is not a rhetorical question, btw. What if, e.g.,
> > Congress used the Commerce clause to create a perpetual copyright?

This is an interesting question, which could be a very live issue if Congress continues to legislate around the edges of copyright and commerce (especially where such legislation covers contract issues). The Court in the 1900's struck down federal trademark legislation because trademarks were not copyrightable writings. Congress based subsequent trademark legislation on the Commerce Clause and that has stood. But of course trademark legislation would be somewhat different than extending copyright (either perpetually or to unoriginal writings)

Justice O'Connor relied on the Trademark Cases in holding the originality requirement to be constitutional in Feist, but I don't think the Court considered the Commerce Clause angle. Justice O'Connor has also played a key role in the recent limitations on the Commerce Clause (Lopez and the Tenth Amendment cases). Perhaps the argument would be most appealing to the present Court if there were a Tenth Amendment basis to it - ie that the originality requirement left regulation of nonoriginal writings to states through common law copyright or contract law (which would hardly square with ProCD).

Steve McJohn Suffolk Law
<smcjohn[_at_]acad.suffolk.edu> Received on Sat Apr 20 1996 - 19:09:51 GMT