Copyright

• Author: Melville B. Nimmer
• Pages: 685-686

Page 685

The Framers of the Constitution delegated to the national government authority to enact copyright laws. The copyright power, together with the PATENT power, is found in Article I, section 8, clause 8, which empowers Congress "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." Because there is no record of any debate on this clause at the CONSTITUTIONAL CONVENTION OF 1787, and mention of it in THE FEDERALIST is perfunctory, the meaning of the clause must be found in case law.

The phrase "to promote the progress of science" states what the Supreme Court, in Mazer v. Stein (1954), described as "the economic philosophy behind the clause," which is "the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors.?" Most courts, however, would deny that the introductory phrase permits the denial of copyright to any particular work on the ground that it does not contribute to such "progress." In fact, a United States Court of Appeals held in 1979 that obscene content does not invalidate copyright.

The words "by securing" came into contention in Wheaton v. Peters (1834), the first important copyright case decided by the Supreme Court, and a case involving two of the Court's own reporters. The plaintiff there argued that the federal copyright statute merely added additional remedies to a right that already existed at COMMON LAW. To bolster this position, he argued that the word "secure" meant to protect, insure, save, and ascertain, not to create. The Court rejected this contention, holding that the federal statute had created a new right, but that the author had not complied with the act's conditions.

Because the clause contains the words, "for limited times," a federal copyright statute that purported to grant copyright protection in perpetuity would clearly be unconstitutional. So too would a term that is nominally "limited" but is in fact the equivalent of perpetual protection (for example, a one thousand year term). The term currently provided for newly created works, the life of the author plus fifty years, conforms with the "limited times" requirement.

Only "authors" may be granted copyright in the first instance, although, once granted, copyright is transferable by an author to others. The term "authors" in the...