The Copyright and Patent Clause -- are current laws unconstitutional?

For all you constitutional law experts out there: the current U.S. copyright and patent laws allow authors, inventors, their heirs, assignees, and entire corporations to hold rights to works or inventions, even after the deaths of the authors and inventors. Yet the clause very specifically states, “. . . by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” It does not state “. . . by securing for limited Times to Authors and Inventors and their heirs and assignees the exclusive Right . . .”

Doesn’t that, on it’s face, make any laws granting rights of authorship or invention to an author’s or inventor’s heirs, or granting copyright or patent rights to any assignee (including corporations), unconstitutional?

I know very little about intellectual property law (and there may be some legal precedent on this point), but I can give you can answer from a general perspective of constitutional interpretation and property law. I think you can basically make two arguments from the text for your interpretation: an argument about “limited time” and an inclusio unius est exclusio alterius argument.

The limited time clause is still applied, theoretically, though Congress has stretched it out. I don’t think, on its own, you can say this clause means the property right disappears to upon your death or cannot be assigned so long as it does disappear at some appointed time.

The inclusio unius argument requires the identified concept to be part of the same category as the excluded ones. For example, if a statute reads “The United States Supreme Court may hear appeals from the highest court of the states,” then we may reasonably conclude, absent other context or evidence, that district courts may not hear such appeals. The idea is that district courts and the supreme court are in the same category, so the mention of one excludes the others. But the grantee of some property right is not generally thought of as being in the same category as the heirs and assigns of that property. In property law, they are thought about separately. The inclusion of the person to whom the property is granted without discussing what happens when the grantee dies or whether he can assign the property does not suggest that the property right ceases to exist upon the grantees death.

Indeed, the background principle in the common law is both freedom of assignment and alienation, and the granting of a property right in fee simple in the absence of further modifying language. So the textual interpretation argument would need to be pretty strong to overcome that background common law principle, I would think.

The principle of copyrights being assignable to heirs predates the constitution. It was a right established in both France and England in the early 18th century. Prior to that, copyright reverted to the publisher on death.

While the Supreme Court has heard and ruled on all kinds of challenges to the definition and scope of copyright law, I’m not aware of anyone who has challenged the constitutionality of this particular aspect of copyright law.

The idea was to make intellectual property more similar to physical property. giving it some of the same rights and protections. Physical property could always be assigned to heirs. That would make it very odd for anyone to consider that intellectual property could not be.

Since common law granted heritability of intellectual property I think the proper argument is that copyrights and patents could not be inherited, if and only if the framers had explicitly said so. They didn’t, so their intentions were to make it so.

You have to be very careful of reading literalness into the Consitution.

Yes, if you are not careful it might disagree with your position. :slight_smile: (Not a knock at you Expano)

I don’t have references handy at the moment, but federal courts have addressed this exact question. “Limited Times” means “the limit that Congress chooses to set, so long as it isn’t literally infinite.” It doesn’t mean “not longer than any particular individual thinks it should be.”

That’s what I wasn’t understanding then. I’m pretty sure I’ve read that copyrights and patents are considered property, so I’d wager any argument to the Supreme Court based on an interpretation of “Authors and Inventors” would fail.

I wasn’t asking about “limited times.” That’s already been decided in Eldred v. Ashcroft (2003) where the Supremes essentially said that since the “Sonny Bono Copyright Term Extension Act” didn’t provide an unlimited copyright time, congress could make whatever law they wanted for any length of time.

If you own property, it is yours to sell, rent, loan out, give away, or keep for your life and give to your heirs and assigns at your death. This is true whether it is the Blackacre estate, real property, the DeMaupassant necklace, personal property, or the copyright to Triumph of the Straight Dope, intellectual property.

The OP asked “Doesn’t that, on it’s face, make any laws granting rights of authorship or invention to an author’s or inventor’s heirs, or granting copyright or patent rights to any assignee (including corporations), unconstitutional?”

Actually, the U.S doesn’t grant rights to the author’s or inventor’s heirs or assignees. The author or inventor (through operation of state law) does. In fact, the U.S. is somewhat unique amongst the world’s patent systems in that the “Inventor” is always applicant for a patent, not the owner of the resulting rights.

The above messages are correct in that a patent or copyright “is a property right.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002). As property, its ownership is a matter of state law, not federal constitutional law. Jim Arnold Corp. v. Hydrotech Sys., Inc., 109 F.3d 1567, 1572 (Fed. Cir. 1997). The U.S. grants the rights to the inventor, as required by the Constitution. Then the owner can do what he wants with it. Or the states can determine that when he dies, his heirs get it.

There are certain federal preemptions to state property laws. The 1976 Copyright Act allows an author, or the author’s successors, to terminate the transfer (assignment, license, etc.) of a copyright, for a five-year period beginning 36 years after the transfer was made.

You bring up a good point that there are other premption issues involving property. For instance, the state could not enact a law prohibiting the sale of a patent. Ex parte Robinson, 20 F. Cas. 961 (C.C.D. Ind. 1892); *Allen v Riley * 203 U.S. 347 (1906).

For the OP, there’s a very thorough article about how the Intellectual Property clause limits Congress listed below, including significant discussion regarding how patents must be issued to inventors and that the U.S. is a little more lenient with respect to copyrights (“author” means the real author or the employer of the author? What?). Unfortunately, I could not find a public domain copy of the article. If you’ve got WestLaw or Lexis access, or a law library and way too much time on your hands, it’s a good read on the topic.


That always seemed a bass ackwards to me – when, in the past, I created a patentable invention for a company, I had to be listed on the patent, then sign away all my rights to the company. It was rather bothersome having to deal constantly with the lawyers for something I had no financial interest in.

Also, let’s say that SCOTUS ruled that, yes, current laws are unconstitutional and only Authors and Inventors can hold a copyright or patent and it cannot be inherited or assigned. Let’s also say that an author wants their spouse and children to keep receiving royalties after their death. All they would have to do is name their spouse and children as co-authors on a copyrighted work and the copyright would remain in force until the death of the last co-author (most likely the youngest offspring).

One of the main problems with prohibiting assignments is that in many cases you make the intellectual property worthless to that person or to society.

If assignees were declared unconstitutional for Authors and Inventors, which would mean the rights to the creative work or invention could not be sold, then the author or inventor would merely grant an exclusive, lifetime license to whomever wanted to “buy” those rights. Thus the intellectual property still has value.

The Coprights and Patent Clause must be cpmstrued in harmony with the rest of the Constitution, in this case the Takings Clause. Among the many interesting points that clause covers is the idea that statute cannot restrict someone from any profitable use of their property unless they are duly compenstated. (See the First English Lutheran Church case.) Giving you “exclusive use” to your invention or writings without allowing you to sell them or the rights to them would in my mind equate to giving you formal title to a parcel of land the zoning laws forbid you to do anything at all with.

As for signing away your rights – it’s my understanding that a corporate ‘person’ cannot in law invent or write creatively, i.e., cannot apply for a patent or copyright. However, it can own one, can underwrite the work of one or more natural persons entitled to apply for one, and can make it a condition of employment or other funding that any patentable discoveries or creative works prepared while in its employ or funded by it, be signed over to it. That is, you were supported in doing the creative work that resulted in your patent or copyright by corporation X, which is repaid by your signing the rights to the work they underwrote over to them.

Not true.

See, for example, the works made for hire doctrine. Under that doctrine, the corporate entity is the author. It is not an assignment from the employee to the employer.

Link to PDf: Circular 9 Redirect | U.S. Copyright Office

U.S. patent, true; U.S. copyright, not true. Under U.S. copyright law, a creative work made by an employee for an employer is not assigned to the employer by the employee; it has always been the employer’s property.

I don’t believe anyone has yet mentioned Lawrence Lessig or Sonny Bono in this thread. It was the 20 extra years that Bono pushed thru congress that made the latest brew-haha, Elred v. Ashcroft. While SCOTUS has allowed all copyright extensions so far and has proposed no limit, it seems unreasonable that an infinite number of these would meet the “limited times” provision of the Constitution.

That’s also true for independent contractors under “work for hire” regulations. I’m currently “commissioned” to write software for this company that owns a particular patent. My contract simply says that whatever work I do for them is a “work for hire,” thus they own the rights to my output. Where it gets tricky is when I need to include wholly owned, previously independently written software of mine into their code. I’ve solved that dilemma by excluding the actual previous code and writing new code for them based on the previous ideas. That gets me out of giving away my code for free or getting mired in troublesome licensing issues.