The text, structure, and history of the Intellectual Property Clause (IP Clause), as well as subsequent governmental activity, Supreme Court doctrine, and policy, show that the IP Clause limits Congress from using any of its other powers "To promote the Progress of Science and useful Arts" through laws that reach beyond the power conferred by the IP Clause to "secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." That is, the evidence marshaled by this Article shows that the IP Clause externally limits Congress from seeking, via legislation, to promote the progress of science and useful arts, in any way other than by enacting laws that secure to authors and inventors exclusive rights in their writings and discoveries for limited times. Yet the story of Congress's power in this area has another side: Since the late twentieth century, Congress has increasingly reached beyond the IP Clause's means to promote the Clause’s ends, often asserting its expansive—and less limited—commerce and treaty powers. To some degree, this shift reflects the fact that laws regulating intellectual property often have multiple purposes, including trade and foreign relations interests, which sometimes point in more expansive directions than do those of the more limited IP Clause. This Article synthesizes these competing purposes and provides an analytical framework under which courts, legislators, and others can assess the constitutionality of federal legislation. This framework affords a presumption against the constitutionality of laws that promote the IP Clause's ends but subvert its means, a presumption that may be overcome only by clear and convincing evidence that Congress, pursuant to its other more permissive powers, intentionally chose to supersede the IP Clause's means because of paramount, legitimate interests. This framework suggests that a number of existing federal laws, such as federal trade-secrecy provisions and antibootlegging laws, might be unconstitutional. The framework also suggests how to assess the constitutionality of laws that would protect databases, laws passed pursuant to international agreements with other countries, and laws that establish federal funding for scientific and artistic works.
Jeanne C. Fromer,
The Intellectual Property Clause’s External Limitations,
61 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol61/iss7/1