Talk:Copyright Clause

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Untitled[edit]

This page needs help from legal professionals / students. This is of serious interest to the Wikipedia community and is currently inadequate. There're a number of cases defining and limiting the scope of these powers that should be cited here with brief explanations for them. We need more legal background as organized and succinct as possible. LH 07:21, 29 September 2006 (UTC)

Attribution[edit]

Material in this article was merged in from Intellectual property clause, which now redirects here. BD2412 T 19:11, 24 December 2005 (UTC)

Is "Copyright Clause" an accurate title though? Althought "intellectual property" is a problematic term, this clause also applies to patents. --Balleyne (talk) 05:34, 21 March 2008 (UTC)
It's the common name - I will look for sources, but I can tell you from firm experience that the clause is known by practitioners as the Copyright Clause. bd2412 T 05:44, 21 March 2008 (UTC)
I've heard it referred to as the Progress Clause, which redirects here. Lawrence Lessig refers to it as such in Free Culture. -FrankTobia (talk) 13:47, 21 March 2008 (UTC)
Ok, I did a Lexis search of federal cases and this is what I came up with:
Patent and Copyright Clause: 28 hits.
Copyright Clause: 178 hits (including the above, ergo 150 are Copyright Clause alone).
Patent Clause: 143 hits, but at least a dozen of those refer to clauses in contracts rather than the Constitution.
Copyright and Patent Clause: 23 hits.
Intellectual Property Clause: 17 hits.
Progress Clause: 9 hits, but most refer to provisions in contracts rather than the Constitution.
I suppose "Patent and Copyright Clause" would be sufficiently inclusive. bd2412 T 01:54, 22 March 2008 (UTC)
So I did some poking around. Within this paper I found "('Progress Clause,' formerly 'Copyright and Patent Clause,' 'Intellectual Property Clause,' or 'Exclusive Rights Clause')", which leads me to believe that the clause in question was once referred to by a number of different names, and is now referred to as the Progress Clause. This could explain your Lexis findings. Or it could mean something else entirely. bd2412, can you find the dates of the most recent cases for each different term and see if that changes things?
Or does anyone know an IP lawyer we can ask? -FrankTobia (talk) 04:51, 22 March 2008 (UTC)
As it happens, I am an IP lawyer (convenient, no?). I would call it either the Copyright Clause or the Intellectual Property Clause - maybe the Patent and Copyright Clause, but I have never heard it called the Progress Clause or the Exclusive Rights Clause before this discussion. Of the cases that I saw, I was struck that in the fairly recent Supreme Court case of Eldred v. Ashcroft, different justices referred to it in their various opinions by the first three names I mention in this paragraph. However, that was a copyright case, so they may have been less inclined to mention the patent part. bd2412 T 04:57, 22 March 2008 (UTC)
[EC] "Progress Clause" is just wrong here; extreme minority usage, almost unique to Lessig. In the last few years it appears one Circuit opinion used it: Golan v. Gonzales, 501 F.3d 1179 (10th. Cir 2007), and most of the opinion calls it the "Copyright Clause." This case was argued by Lessig, among others. A District Court used it in Kahle v. Ashcroft, 72 U.S.P.Q.2D (BNA) 1888 (N.D.Cal. 2004), but only quoting the briefs, and Lessig was also involved in Kahle. It doesn't appear "Progress Clause" had ever been used before. In contrast, "Copyright Clause" has been used over a dozen times since Eldred (U.S. 2003), which used it among other variants. All of these terms are in current use except "Progress Clause."
term last use last Supreme Court use
"Progress Clause" Golan v. Gonzales, 501 F.3d 1179 (10th. Cir 2007) (in passing, prefers "Copyright Clause") Never.
"Copyright Clause" Golan v. Gonzales (10th. Cir 2007) Eldred v. Ashcroft (U.S. 2003)
"Patent and Copyright Clause" Golan v. Gonzales (10th. Cir 2007) Eldred
"Patent Clause" In re Nuijten, 500 F.3d 1346 (Fed. Cir. 2006) Cent. Va. Cmty. College v. Katz, 546 U.S. 356 (2005) (in parenthesis)
"Copyright and Patent Clause" Luck's Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C.Cir. 2005) Eldred
"Intellectual Property Clause" No COA use since Eldred Eldred
"Copyright Clause" is the most common name, but it also goes by "Patent Clause" in that context, so I would favor moving to "Patent and Copyright Clause", if we find this title to restrictive. I'm happy with it here though. Cool Hand Luke 05:39, 22 March 2008 (UTC)
Haha, I didn't realize Lessig is the only person calling it the Progress Clause. Interesting, though, that so many different names for it show up in Eldred v. Ashcroft. I'm happy either way, whether this article stays here or moves to Patent and Copyright Clause. -FrankTobia (talk) 05:41, 22 March 2008 (UTC)

The "Progress Clause" is what it should be called on an NPOV basis. The clause at least contains the term 'Progress' and to promote the progress is evinced as its motive. Congress is not instructed to grant the privileges of copyright and patent - these are only inferred as being within Congress' power to grant, and how it chose to secure the author's exclusive right to their writings, and the inventor's exclusive right to their designs. Crosbie Fitch (talk) 17:43, 6 January 2012 (UTC)

Both Google's Ngram Viewer and the Legal Language Explorer (couldn't figure out how to link directly -- go to Legal Language Explorer and run a search for "Copyright Clause,Progress Clause,Intellectual Property Clause,Patent and Copyright Clause,Patent Clause,Copyright and Patent Clause") seem to suggest that "Copyright Clause" is by far the most common usage.
Between just the two conjunctive titles ("Patent and Copyright Clause" and "Copyright and Patent Clause"), the same two sources show "Patent and Copyright Clause" to be decidedly more common. Hartboy (talk) 22:48, 6 January 2012 (UTC)
That "Copyright and/or patent clause" is the more common usage is beside the point. NPOV and accuracy should be the principles, not popularity or idiomatic corruption. Crosbie Fitch (talk) 18:24, 10 January 2012 (UTC)

Who wrote the copyright clause?[edit]

I recall hearing it was Thomas Jefferson, but I have no reference basis for this. Do we know enough about the evolution of the Constitution as a document to pinpoint who conceived this clause, either its concept or its specific language? 206.57.41.114 (talk) 21:54, 24 April 2009 (UTC)

Actually, we know that exactly:
On August 18, 1787, three proposals were made to include intellectual property rights within the enumerated national powers. The first was a new proposal by Pinckney "to secure to authors exclusive rights for a limited time." James Madison made two alternative proposals: (1) "to secure to literary authors their copyrights for a limited time"; or (2) "to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries."
Madison’s and Pinckney’s proposals were referred to the Committee on Detail. ...
On September 5, 1787, the Committee on Detail reported the proposed copyright and patent sections of the Constitution to the Congress: "Congress shall have 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." The clause was unanimously agreed to and incorporated in the Constitution as adopted by the Convention on September 17, 1787.
William F. Patry, Copyright Law and Practice (1994).
Cheers! bd2412 T 22:18, 24 April 2009 (UTC)

Anachronistic ?[edit]

The first sentence reads:

"At the time that the Constitution was written, both patent and copyright protections had long existed in the United Kingdom." (emphasis mine)

Was "United Kingdom" the correct phrase for the 18th century or would it be more correct to say "Britain" or even "Europe" for this sentence? 66.97.214.17 (talk) 07:25, 29 December 2010 (UTC)

I think it's OK. The United Kingdom of Great Britan and Northern Ireland didn't exist until 1801, but the Kingdom of Great Britain was formed in 1707. According to the Wikipedia article, the Kingdom of Great Britain was occasionally referred to as the United Kingdom of Great Britain. So, I think it is OK, but Great Britain might be more accurate. Where I'm not so sure is to say that copyright had "long existed". The Statute of Anne, was about 80 years before the Constitution, does that qualify as having long existed? Maybe it does, I'm not sure. Perhaps rather than say a more vague term, it could be more precise.--RLent (talk) 20:50, 5 May 2011 (UTC)

Call it "Progress Clause"[edit]

It isn't just about copyrights —Preceding unsigned comment added by 134.193.112.62 (talk) 13:46, 10 March 2011 (UTC)

Two sections (and three years) above, I documented some cases where the different terms have been used. Copyright Clause was the most common usage in case law, but perhaps that's because judges in copyright cases are more likely to use the term; the Federal Circuit unsurprisingly says "Patent Clause." The Supreme Court has never called it the "Progress Clause," although that term is well-known in recent law journals.
When the most common usage butts heads with strict accuracy on Wikipedia, we often side with the most common usage. If we were to move away from "Copyright Clause," then "Intellectual Property Clause" or "Patent and Copyright Clause" would be better alternatives—they have been used many more times than "Progress Clause." Cool Hand Luke 17:05, 10 March 2011 (UTC)

The "Progress Clause" is what it should be called on an NPOV basis. The clause at least contains the term 'Progress' and to promote the progress is evinced as its motive. Congress is not instructed to grant the privileges of copyright and patent - these are only inferred as being within Congress' power to grant, and how it chose to secure the author's exclusive right to their writings, and the inventor's exclusive right to their designs. Crosbie Fitch (talk) 17:43, 6 January 2012 (UTC)

Progress[edit]

Heh. As if half of the industries which treat copyright as a monetary requirement actually advance "science and the useful arts."

I guess that's just what we live with though. I would tend to be in favor of the term progress clause, were it actually remotely treated as such. After all, the aforementioned industries tend to make up terms of their own when talking about copyright, and they end up sticking due to simple propagan... er... educational marketing. FoJacker46 75.170.243.23 (talk) 01:51, 14 July 2013 (UTC)