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Yesterday we held our second class session of Power Line University, this time taking up the famous Federalist #10, drawing out key points of James Madison’s views on how an “extended republic”—long thought impossible—was a solution for the perpetual defects and eventual failures of republican governments. His views on equality and property come in for special attention.
For those who may wish to take in the slides we used online, you can watch the whole class session at this YouTube link.
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Article I, Section 8, Clause 8 of the Constitution does not escape my attention, I carry it in my hip pocket:
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.
At the risk of incurring Lucretia‘s ire, I’ll complicate it even more than Steve did. Parsing the sentence is educational, as it reveals how the Framers and Ratifiers of the Constitution referred to the specific types of intellectual property (“IP”) that they wished to protect by copyright and patents, and how they referred to the owners of that IP. Here’s the sentence presented in table form:
The Congress shall have Power … To promote the Progress of
Technology: Science and useful Arts
by securing for limited Times to
IP Owner: Authors and Inventors
the exclusive Right to their respective
IP Type: Writings and Discoveries
Thus it is evident that the Framers and Ratifiers of the Constitution did not regard “Science” as merely the province of “Discoveries” that would be eligible for patent protection, but wished for “Authors” to receive protection for their “Writings,” which historically has been provided through copyright laws, in order “To promote the progress of Science[].”
It’s noteworthy that the clause intends to promote the progress of “science,” and not (merely) “literature,” or some other exclusive province of authors.
Another item of note based on the Constitutional language is that as written, the “exclusive Right” to be protected is that of Authors and Inventors, respectively. The practical effect of this grant of an exclusive right to inventors is that US patent protection may only be granted to a true inventor. Many other nations’ patent systems grant patents to the first applicant to file, regardless of whether the applicant is the inventor.
(posted by permission of the author)