Journal of Intellectual Property, Vol. 1, No. 1 (Fall 1993), pp. 1-48


The purpose of this essay is to define and explore the meaning of "the exclusive Right" in the Intellectual Property Clause of the United States Constitution as related to the promotion of learning, the public domain, and authors. Without a clear understanding of this key term, one is likely to be unaware that lower federal courts are continually making rulings contrary to both the Copyright Clause and the Copyright Act. The classic example is the judicially created sweat-of-the-brow copyright, which in 1991 -- after seventy-five years of precedent -- the Supreme Court decreed to be unconstitutional. Other bad precedents, such as perpetual injunctions to prevent the infringement of future copyrights, remain uncorrected.

Part II of this article deals with the source of "the exclusive Right" that the framers empowered Congress to secure, which requires consideration of the history of the English copyright jurisprudence as well as the American understanding of that jurisprudence. Part III shows that copyright policies and principles are derived from the meaning of "the exclusive Right" as the right to publish and vend; and Part IV demonstrates that the 1976 Act codifies the principles discussed in light of "the exclusive Right." Part V is a brief commentary on understanding copyright, a goal that requires courts to cease reading the Copyright Act piecemeal and to read it whole in light of the Copyright Clause. Part VI is the conclusion.