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23.3: Constitutional Roots

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  • The US Patent and Trademark Office (USPTO) was established to protect patents as enumerated in Article I, Section 8 of the Constitution. That clause, known as the Copyright Clause, says that Congress may “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 USPTO website has a searchable database for trademarks and patents.

    The Copyright Clause directs the federal government to protect certain products of the mind, just as much as it protects personal land or money. The Copyright Clause essentially allows the government to create a special kind of monopoly around IP. For example, a pharmaceutical company invents a drug and applies for a patent. If the patent is granted, then the company can charge as much as it needs to recover its research and development costs because competitors are shut out of that drug market by virtue of the patent. Violations of patent law carry severe penalties.

    How can Congress outlaw most monopolies when the Constitution grants monopolies for IP? The answer lies in the genius of the Copyright Clause itself. As in all monopolies, there are two sides: the producer and the consumer. The producer wants the monopoly to last as long as possible, while the consumer wants the monopoly to end as quickly as possible. The Copyright Clause strikes a compromise between the producer and the consumer in two ways.

    First, the Clause states that Congress can grant the monopoly only to “promote the progress of Science and Useful Arts,” which is a very specific purpose. Note that making an inventor rich is not the purpose. Rather, the purpose is progress. Granting temporary monopolies encourages progress by providing a financial incentive to producers. Singers, songwriters, inventors, drug companies, and manufacturers invent and create in the hope of making money. If they were not protected, they would either not invent at all or would simply do it for themselves, without sharing the fruits of their labor with the rest of society.

    Second, the Clause states whatever monopoly Congress grants has to be for a “limited time.” Congress makes the decision on how long a monopoly can last based on how best to promote progress. When the monopoly ends, science is advanced again because others can freely copy and improve upon the producer’s products. Society benefits greatly from the expiration of IP monopolies. Important drugs such as aspirin and penicillin, for example, can now be purchased for pennies and are accessible to the entire human population. Similarly, literary works, such as Shakespeare’s Hamlet or Beethoven’s Fifth Symphony, can be performed and enjoyed by anyone at any time without seeking permission or paying royalties because copyrights last for only seventy years after the death of the author or creator. These inventions and works are now in the public domain to be enjoyed by all.