19 Hamline L. Rev. 81 (1995-1996)
Inherent or Created Rights: Early Views on the Intellectual Property Clause

handle is hein.journals/hamlrv19 and id is 91 raw text is: INTELLECTUAL PROPERTY CLAUSE

INHERENT OR CREATED RIGHTS: EARLY VIEWS ON THE
INTELLECTUAL PROPERTY CLAUSE
Edward C. Walterscheid1
I. INTRODUCTION
The United States patent and copyright law derives from a constitutional
grant of authority to the Congress to promote the Progress of Science and use-
ful Arts, by securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries ..... *              The clause granting
such authority is frequently referred to as either the patent clause, the copy-
right clause, or the intellectual property clause, depending on the context in
which it is being discussed. Any of these descriptors is in a sense misleading in
that the clause contains [n]o reference to 'property' itself (or to patents or
copyrights as such) .... ,3 A more correct description of the clause, at least in
the context of the time at which the Constitution was drafted, would be the
science and useful arts clause, because the term intellectual property seems
to have been unknown in the eighteenth century.4 Nonetheless, because intel-
lectual property law is to a substantial extent derived from the grant of author-
ity set forth in this clause, this article follows what is increasingly becoming
standard usage and refer to it as the intellectual property clause.
Much has been written about the preoccupation of the Framers with the
protection of property.5 As noted by Jennifer Nedelsky: For the Framers, prop-
erty was both a natural and a positive right, and it was a right that could not
simply be declared to be beyond the reach of government because it required
government (and was therefore the origin of government).6 Surprisingly, how-
ever, constitutional scholars and legal historians who readily discuss every
other aspect of the constitutional language in the context of its supposed rela-
tionship to property rights have almost nothing to say about the intellectual
property clause.
Even so, there has long been a school of thought which argues that the
intellectual property clause was not intended to empower the Congress to stat-
utorily create intellectual property but rather was intended to obligate the Con-
1.   Edward C. Walterscheid, Deputy Laboratory Counsel, University of California Los Alamos National Laboratory, Los Ala-
mos, NM 87545; B.A. University of New Mexico; J.D., University of New Mexico. Although the work which resulted in this article was
performed under a contract between the Department of Energy and the University of California, the views expressed herein are
uniquely those of the author and do not necessarily represent those of either the Department or the University.
2.   U.S. Coxsr, art. 1, S 8, ci. 8.
3.   BRUCE W. BUGBEE, GENESIS OF AMERICAN PATENT AND CoPYRIGHT LAW 129 (1967).
4.   Id. at 3. Bugbee notes the existence of a book published in 1878 entitled Thoughts on the Nature of Intellectual Prop-
erty and Its Importance to the State, which is a defense of the United States patent system as it then existed. Steven Lubar cites an
earlier work entitled Law of Intellectual Property published in 1855, which in essence is a strong attack on the antebellum United
States patent system. Id. at 3-4. See Steven Lubar, The Tansformation ofAntebeflum Patent Law, 32 TECHNOLOGY AND CULTURE 932,
953 (1991).
5.   See generally JENNIFE  NDEISKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTrrIIONALISM (1990); Laura S.
Underkuffler, On Property: An Essay, 100 YAMI J. 127 (1990); Mark V. Tushnet, The Constitution as an Economic Document, 56
GEO. WASH. L. Rev. 106 (1987); CHARLES A. BEARD, AN ECONOMIC INTERPRETATIOs OF THE CONSTITUTION OF THE UNITED STATES (2d ed. 1935);
RICHARD HOPsTAuTER, THE AMERICAN POLrICAL TRDITION AND TH MEN WHO MADE IT (2d ed. 1973).
6.   NEDELSKY, supra note 5, at 152.

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