Is Intellectual Property a Constitutional Right?

//Is Intellectual Property a Constitutional Right?

Is Intellectual Property a Constitutional Right?

By | 2018-10-22T12:52:44+00:00 October 16th, 2018|

By Stephen D. Wilson | October 16, 2018

Did you know that the United States Constitution has an intellectual property (IP) clause?

The IP Clause of the U.S. Constitution (1787)

The U.S. Constitution was adopted on September 17, 1787.  Article I, Section 8, Clause 8, of the Constitution grants Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  This clause is the source of power for Congress to enact laws governing copyrights and patents, and some refer to it as the “Copyright Clause,” “Patent Clause,” “Patent and Copyright Clause,” “Intellectual Property Clause,” or “IP Clause.”

George Washington and the Patent and Copyright Acts of 1790

George Washington was a strong proponent for IP protection.  On February 4, 1789, 69 members of Congress cast their ballots to elect Washington as the first President of the United States.  In his first Annual Message to a Joint Session of Congress, he urged Congress to pass legislation on copyrights and patents.  Shortly thereafter, the Patent Act of 1790 was signed into law on April 10, 1790, and the Copyright Act of 1790 was signed into law on May 31, 1790.

 Brief History of U.S. Patents

George Washington signed the first issued U.S. patent on July 31, 1790 (U.S. Patent No. 1), granted to Samuel Hopkins for an improvement “in the making of Pot ash and Pearl ash by a new Apparatus and Process.”  Nearly 228 years later, the United States Patent and Trademark Office (USPTO) issued patent number 10 million on June 19, 2018 (U.S. Patent No. 10,000,000), for “Coherent Ladar Using Intra-Pixel Quadrature Detection,” invented by Joseph Marron and owned by Raytheon Company, which has applications in varied fields such as autonomous vehicles, medical imaging devices, military defense systems, and space and undersea exploration.

Brief History of U.S. Copyrights

 The United States Copyright Office (USCO) and the Library of Congress did not exist when the Copyright Act of 1790 was enacted, so Clerks of the United States District Courts registered works until 1870, when copyright functions were centralized in the Library of Congress.  The first work was registered within two weeks after Congress enacted the first federal copyright law in May 1790.  In 1897, Congress created the USCO and the position of Register of Copyrights.  The USCO is a separate federal department within the Library of Congress.  Currently, the USCO each year registers around half a million copyright claims, records more than 11,000 documents containing hundreds of thousands of titles, and collects a quarter of a billion dollars in cable TV, satellite carrier, and Audio Home Recording Act compulsory license funds for future distribution to copyright holders.  The USCO has registered more than 33 million claims to copyright and mask works, and has provided millions of deposits (including music, sound recordings, books, motion pictures, pictures, serials, maps, prints, and computer works) to the collections of the Library of Congress.  The USCO currently employs around 475 people.

IP Beyond U.S. Borders: Paris Convention (1883), Berne Convention (1886), and Universal Copyright Convention (1952)

 Recognizing the need to protect IP rights beyond the nation’s borders, the U.S. joined an international IP treaty nearly a century after adopting the Constitution.  Following a diplomatic conference in Paris in 1880, 11 countries signed an international IP treaty in 1883 known as the Paris Convention for the Protection of Industrial Property (Paris Convention): Belgium, Brazil, France, Guatemala, Italy, the Netherlands, Portugal, El Salvador, Serbia, Spain, and Switzerland.  The U.S. joined the Paris Convention in 1887.  The Paris Convention covers a broad range of IP rights, including patents, trademarks, service marks, trade names, geographical indications, industrial designs, utility models, and unfair competition.  This international treaty was the first major step to help ensure that IP rights were protected in other countries.  As of October 2018, the Paris Convention currently includes 177 contracting member countries, making it one of the most widely adopted IP treaties worldwide.  

 The U.S. later joined two principal international copyright conventions: (1) the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention); and (2) the Universal Copyright Convention (UCC).  The Berne Convention is an international agreement governing copyright that was first accepted in Berne, Switzerland, in 1886.  The UCC was adopted in Geneva, Switzerland, in 1952.  The U.S. became a member of the Berne Convention on March 1, 1989, and has been a member of the UCC since September 16, 1955.  The U.S. is currently a member of many international treaties and conventions affecting IP rights.

 

Beggs & Lane (1883)

Beggs & Lane was founded in 1883, more than a decade before Congress created the U.S. Copyright Office.  For more than 130 years, Beggs & Lane has represented a broad and diverse client base, including major corporations, businesses, professionals, non-profit organizations, and individuals.  Beggs & Lane’s Intellectual Property Group assists clients throughout the U.S. and the world with domestic and foreign IP protection.