Article I, Section 8, Clause 8:

[The Congress shall have 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.

The Intellectual Property Clause was written against the “backdrop” of English law and practice.1 Patent law traces its origins to the English Parliament’s 1623 Statute of Monopolies.2 Prior to this law, many patents were “little more than feudal favors,” 3 a royal privilege granted by the Crown “to court favorites in goods or businesses which had long before been enjoyed by the public.” 4 Parliament curtailed this practice in the Statute of Monopolies, which declared that “all monopolies and all commissions, grants, licences, charters and letters patents . . . are altogether contrary to the laws of the realm . . . and shall be utterly void and of none effect.” 5 The statute contained an exception, however, that is the ancestor of modern patent law. Section 6 provided that the general prohibition on monopolies “shall not extend to any letters patents . . . for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm to the true and first inventor . . . of such manufactures.” 6

Copyright, too, has its origins in English law.7 The 1710 Statute of Anne, which was styled “[a]n act for the encouragement of learning,” 8 was also enacted against a background of monopolistic privileges granted by the Crown—in particular, the Stationers’ Company’s exclusive control over book printing.9 To encourage the creation of new books, the Statute of Anne granted authors the exclusive right to copy their works for an initial term of fourteen years, renewable for another term of fourteen years if the author was still living.10 For already published books, the Statute of Anne replaced the perpetual rights claimed by booksellers with a single twenty-one-year term.11

Footnotes

1

Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 5 (1966).

2

See United States v. Line Material Co., 333 U.S. 287, 331–32 (1948) ( “[The Statute of Monopolies] has become the foundation of the patent law securing exclusive rights to inventors . . . throughout the world.” ).

3

Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, No. 16-712, slip op. at 5 (U.S. Apr. 24, 2018) (Gorsuch, J., dissenting).

4

Graham, 383 U.S. at 5.

5

21 Jac. c. 3 § 1.

6

Id. § 6.

7

Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 647 (1943) ( “Anglo-American copyright legislation begins . . . with the Statute of 8 Anne, c. 19.” ).

8

8 Anne c. 19.

9

See Eldred v. Ashcroft, 537 U.S. 186, 201 n.5 (2003).

10

Fred Fisher Music Co., 318 U.S. at 648–49.

11

Eldred, 537 U.S. at 232 (Stevens, J. dissenting).