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53 J. Copyright Soc'y U.S.A. 313 (2005-2006)
Understanding the Copyright Act of 1790: The Issue of Common Law Copyright in America and the Modern Interpretation of the Copyright Power

handle is hein.journals/jocoso53 and id is 335 raw text is: Understanding the Copyright Act of 1790 UNDERSTANDING THE COPYRIGHT ACT OF 1790: THE ISSUE OF COMMON LAW COPYRIGHT IN AMERICA AND THE MODERN INTERPRETATION OF THE COPYRIGHT POWER by EDWARD C. WALTERSCHEID* Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and In- ventors the exclusive Right to their respective Writings and Discoveries.' Patent and Copyright Clause I. INTRODUCTION An issue in the early republic was the interpretation to be given to the term securing in the Patent and Copyright Clause. The issue arose be- cause at the time the Constitution was drafted to secure had two very different meanings when used in connection with rights. One meaning was to obtain or to provide which in essence would treat the Clause as a grant of authority to create property rights with respect to patents and copyrights. A second meaning had a decidedly legal connotation, to wit, to ensure or to affirm and protect which in turn suggested not an au- thority to create a right but rather an obligation to protect an existing right in the writings of authors and the discoveries of inventors. Whether the Clause referred to inherent or created rights was an issue that would be a topic of argument and debate for a number of decades after the Constitu- tion was drafted and ratified.2 Those who contended that inherent rights existed tended to base their arguments on natural law in the patent case and on common law in the copyright case.3 The reason for the dichotomy was straightforward. Those who were knowledgeable about the common law recognized that while a good argument could be set forth for common-law copyright, the *Mr. Walterscheid is a legal historian specializing in the history of intellectual property law in the United States. He may be reached at ecwalterscheid@earthlink.net. 1 U.S. CONsT. art. I, § 8, cl. 8. 2 See, e.g., Edward C. Walterscheid, Inherent or Created Rights: Early Views on the Intellectual Property Clause, 19 HAMLINE L. REV. 81 (1995). 3 The various contentions are discussed in the text accompanying notes 58-91 infra. 313

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