Commerce Clause and Copyright Clause

Steve McJohn writes:
>
> To summarize: in Railway Execs., 455 U.S. 457 (1982), the Court held
> that Congress could not use the Commerce Clause to pass a non-uniform
> bankruptcy law, for that would circumvent the Bankruptcy Clause, which
> permits Congress to pass "uniform Laws on the subject of Bankruptcies."
> Similar reasoning would apply to the extension of copyright, but not
> to trademarks, which fit more aptly within the Commerce Clause.

     The so-called "patent and copyright clause" does not, in fact, use either term ("patent" or "copyright"). Trademarks are "'writings" that often show no "authorship" (creativity or even originality). Of course, they can have a big effect on commerce, and I have no doubt as to Congress's power to legislate with respect to marks. But how does that differ from a complete electronic database full of public domain material that happens to have great value if its creator has proprietary rights and that will not ever be created (or if created will not be widely distributed) in the absence of such rights? Just what is it that brings marks "more aptly" within the commerce clause? If Congress chose to use some other word, like "antimisappropriation" instead of "copyright," would that justify commerce clause regulation? Are you saying that no matter how great the effect on commerce the so-called "patent and copyright clause" prohibits congressional intervention? Does that conclusion, whatever verbal logic may underlie it, make any sense at all?

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu Received on Tue Apr 23 1996 - 17:11:25 GMT