On 2/18/97, Paul Heald <HEALD[_at_]JD.LAWSCH.UGA.EDU> wrote:
>
> Dan asked my to clarify my thinking on the I.P. clause and
> Congress' ability to "get around" it by enacting legislation under
> other sections of U.S. Const., Art. I, sec. 8. I reprint most of
> his thoughtful post below.
>
> The I.P. clause grants Congress the power "To promote the
> Progress of Science and the useful Arts, by securing for limited
> Times to Authors and Inventors the exclusive Right to their
> respective Writings and Discoveries"
>
> I would parse the clause as follows:
>
> Power: securing for Authors and Inventors exclusive rights
>
> Limitations: legislation must plausibly promote the "progress
> of Science, etc."; writings must be original (Feist); discoveries
> must be non-obvious (Graham); grants of rights can only be for
> limited times
Excellent. We agree almost all the way. Here is where I think we differ: the requirement of originality, as you parse the statute, is *not* a limitation, but part of the power; i.e., the power is to secure rights to authors and inventors, and "author" means that there must be originality per Feist.
To place this in the context of your analogy to Gibbons: Congress has the power to enact bankruptcy laws, with the limitation that they must be uniform. In some sense, you might say that "bankruptcy" is a sort of limitation, in that Congress cannot use the power to legislate regarding tort reform or incorporations -- but "bankruptcy" is really the power granted itself.
I cannot imagine that you would claim Congress cannot use the Commerce power to legislate regarding punitive damage caps by claiming, "AHA! The bankruptcy clause limits Congress to legislating on matters of *bankruptcy* and they can't use the broader Commerce Power to end-around that limitation!"
Similarly, the IP clause grants Congress the power to legislate with regard to authors -- i.e., those who have expressed some originality -- and they can only do it to promote progress, for a limited time. But that does not mean that Congress cannot use the Commerce Power to legislate with regard to those who *aren't* authors.
> In other words, whenever Congress secures to authors or
> inventors exclusive rights to their creations, it must abide by the
> limitations listed above. Under Gibbons v. Railways Executor's
> Ass'n, it may not appeal to another grant of power, e.g. the
> commerce clause, to secure these rights to authors.
This would be absolutely the correct analysis if you were talking about the IP clause limitations: to promote progress, and only for a limited time. But I don't think that it goes to the definition of "author" -- which is not a limitation in the same sense.
This reading, BTW, makes the statutes I listed before perfectly permissible as non-IP clause enactments, while still remaining coherent with the jurisprudence of the IP clause under Feist, Graham, and the rest.
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