The Proper Scope of the Copyright and Patent Power
Author(s): Robert P. Merges
Abstract: As an increasing amount of society’s wealth is tied up in intangible assets, strong, clear property rights can make a good deal of sense. But it is also possible to have too much of a good thing, and our society is in danger of reaching that point. Recent scholarship suggests as much: a growing body of literature details the expansion of particular doctrines, the rising burden of IP-related transaction costs, or the pressing need for collective *46 institutions to mediate between individual firms and the mushrooming pile of IP rights they must traverse to do business.
In this Essay, we approach one part of this problem at the source. We argue that there are limits on Congress’s power to create and extend intellectual property interests. Such limits are “internal” in the sense that they are the result of the very same constitutional provision giving rise to Congress’s power in the first place, the Copyright and Patent Clause of the Constitution which grants the power “To 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.” We argue that the language of the Copyright and Patent Clause may restrict some of Congress’s more far-reaching efforts at promoting intellectual property in recent years, particularly in passing ad hoc extensions of copyrights and patents for the benefit of individual companies. We then suggest some approaches that courts might take in evaluating, and perhaps striking down, congressional actions in this area.
Keywords: patent, copyright, monopoly, extension, commerce, useful arts