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03/20/2014

Sean O'Connor: The Overlooked French Influence on the Intellectual Property Clause
Michael Ramsey

Sean M. O'Connor (University of Washington School of Law) has posted The Overlooked French Influence on the Intellectual Property Clause on SSRN.  Here is the abstract:

The “IP Clause” of the U.S. Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “science” and “useful arts” do not cleanly map onto the subject matter of current intellectual property systems. As the Supreme Court has noted, under current popular usage of “arts” and “science,” one would expect patents to promote science and copyright to promote arts, yet we know from the historical record that it is exactly the opposite. Other terms, such as “progress” and “discoveries” remain contested. IP Clause interpretations to date rely exclusively on British legal and intellectual antecedents. I argue that the great French Encyclopédie project — a landmark of the mid - eighteenth century Enlightenment — provides crucial context. James Madison, a drafter of the IP Clause, owned and approvingly cited the work. Founding Fathers Thomas Jefferson and Benjamin Franklin were enthusiastic advocates of it. The Encyclopédie has as its two twin goals the promotion of progress in science and in mechanical (useful) arts. I argue that the reliance of early courts and commentators on British antecedents to interpret the federal patent and copyright statutes led to an improperly narrow sense of the context of the IP Clause. Using entries from the Encyclopédie on “Art,” “Science,” “Discoveries,” “Inventions,” “Writers/Authors,” and other relevant topics, I propose a new interpretation of the IP Clause that is more coherent and compelling than existing accounts.

(Thanks to Lisa Ramsey for the pointer.)