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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.

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