CONSTITUTIONAL RIGHTS FOUNDATION
Bill of Rights in Action
WINTER 2008 (Volume 23, No. 4)

Intellectual Property

The Origins of Patent and Copyright Law  |  Digital Piracy  |   Patenting Life  |  The Cheating Problem  

The Origins of Patent and Copyright Law

Our nation's founders recognized the value of intellectual property, and in the U.S. Constitution, they granted Congress the power to protect it. From the beginning of our nation, Congress has enacted patent and copyright laws to protect the works of creative people and to encourage others to be creative.

When the American Revolution ended, the states faced an economic depression. War debts had mounted, and some states could not pay what they owed. Seven of the 13 states had issued their own paper money, which had little value. Merchants and wealthy planters who were owed money were becoming angry. The new government of the United States was based on the Articles of Confederation, adopted during the Revolutionary War. The articles gave great power to the individual states and little to the central government. With no power to act, the central government failed to address the war debt and other commercial problems. When the Constitutional Convention convened in 1787, its members recognized that a new constitution would need to encourage commerce and to provide the basis for a stable economy.

To that end, the framers gave Congress the power to lay and collect taxes, to pay the debts owed by the United States, to borrow money on credit, and to coin money and regulate its value. They also gave Congress the power "to Promote the Progress of Science and useful Arts" by giving an economic incentive to inventors and writers. That power, and the national patent and copyright laws that soon followed, have stimulated the country's economy for more than 200 years.

The framers probably could not have predicted how important patents and literary products would become to the national economy. But even in 1787, they knew the basic reasons for protecting intellectual property: Society benefits from the products of original and creative thought. Protecting these products gives their producers an incentive to create more and thus stimulates greater activity.

The European Experience

Patents for Novel Inventions. Fillipo Brunelleschi is best known as the architect of the great dome of the cathedral in Florence. He also invented a novel kind of boat that he believed would allow merchants to bring goods into Florence for less money. In 1421, the Republic of Florence passed a law giving Brunelleschi what is thought to be the first true patent of an invention. A preamble to the law stated that Brunelleschi had refused to make his invention available to the public, but he would do so if he would receive protection from others who might copy his invention. The preamble continued, declaring it was desirable that his hidden invention "be bought to light, to be of profit both to Fillipo and to our whole country." The law gave Brunelleschi the exclusive right to operate his new method of water transportation for three years. The result of granting this privilege, the preamble stated, would "animate Fillipo to even higher pursuits" and stimulate him to more "subtle investigations."

As it turned out, the invention failed. The boat sank in the Arno river. But other parts of Italy recognized the need to issue grants to stimulate new technology. In the middle of the 15th century, Venice began awarding grants and privileges to people who introduced new techniques. In 1460, a "patent of invention" (a grant to the inventor) was awarded for a "water-raising mechanism." The award required a "successful test" before the patent became official. It imposed a fine of 1,000 gold ducats on anyone who imitated the invention without a license. By 1474, Venice had passed a patent statute that included many of the elements of today's patent laws:

1. It required that the device be original.

2. It mandated it be tested for utility.

3. It imposed a standard penalty for infringement.

During the next 300 years, many European countries adopted the model developed in Venice and granted patents for novel inventions.

Copyrights. The printing press was invented in Europe in the 15th century. Before then, literary property rights were not legally protected. But the printing press made the rewards of publishing--and of plagiarism--much greater. And Venice, the center of printing in Italy, soon began issuing "privileges" related to books and printing. In 1496, the republic issued the first known copyright. It gave an author exclusive control over a book and imposed a fine of 500 ducats to anyone who printed his work without permission.

Other European countries also began offering legal protection to authors. In Germany, copyright protection was also provided to artists, including the famous Albrecht Durer (in 1511 and 1518). Musical compositions were also protected. In England, authors and publishers lobbied Parliament to pass a licensing act and were finally successful in 1710 . The law was titled: "For the Encouragment of Learning by vesting the Copies of printed Books in the Authors or Puchasors of such Copies during the Times therein mentioned." The law (known as the Statute of Anne) gave authors "the sole Right and Liberty" of printing new books for 14 years, beginning from the date of first publication. When the term expired, it extended the right for another 14 years if the author was still alive. The law also set a penalty for infringement, including forfeiting all copies and a fine of one penny per sheet. This law influenced the American colonies when they began to address the issue of intellectual property.

The Colonies and the States

Patents for Novel Inventions. No laws in the early colonial years provided for issuing patents. But individuals who claimed to have a novel device or product could apply to the colonial government to ask for the "exclusive right" to make and sell the product. And many such requests were granted. In 1641, the General Court in Massachusetts found that Samuel Winslow had a process "to make [salt] by a meanes and way weh hitherto hath not been discovred" and at "more easy rates that otherwise can bee had." It gave Winslow the exclusive right to use that process for 10 years. Similar grants were made by the General Court in Massachusetts (e.g., for making candles from whale oil) and in the other Northern colonies.

South Carolina was the most active of the Southern colonies in hearing and granting petitions for patent rights. As early as 1691, South Carolina awarded a patent to Peter Guerard for a rice husking machine (rice was the basis for the local economy). Like other patent grants in the colonial period, it was merely a private grant to one inventor. But with more and more requests for patents coming to the legislature, many saw a need for a law that would standardize provisions and include an examination procedure. In 1794, South Carolina was the first state to pass such a law. Titled "An Act for the Encouragement of Arts and Science," the law primarily addressed protecting literary property. But it also contained the following provision: "The Inventors of useful machines shall have a like exclusive privilege of making or vending their machines for the like term of 14 years, under the same privileges and restrictions hereby granted to, and imposed on, the authors of books."

Patent grants continued to increase during the 1780s in many states. Gradually the terms of the state grants became more similar, with most using a 14-year term. But without a national system, inventors often needed to seek grants in many states, which was complicated and expensive. The need for a broader patent protection was clear. As one observer noted on the eve of the Constitutional Convention, "a patent can be of no use unless it is from Congress, and not from them till they are vested with much more authority than they possess at this time."

Copyrights.. The first printing press in North America came to Massachusetts in 1639. Soon thereafter (in 1672 and 1673) the Massachusetts General Court passed two bills giving copyright protection to an author. But no other copyright is known to have existed in any of the colonies prior to the American Revolution. Without protection, American authors found it difficult to prosper, and few American popular works were published.

Beginning in the 1780s, a group of American authors banded together to lobby state legislatures for copyright protection. Perhaps the most well known--and forceful--member of the group was Noah Webster, who later created Webster's Dictionary. In 1782, Webster was revising a book called the American Speller. (It was the first of a three volume text titled The Grammatical Institute.) In 1782 and 1783 Webster sent petitions to the legislatures of Pennsylvania, New Jersey, Connecticut, and New York requesting general copyright laws and also private protection for his book. Other authors were submitting similar petitions.

The authors also pressed the Continental Congress for support. In March 1783, the Congress appointed a committee of three (including James Madison) to consider the question of protecting literary property. Within a month, the committee submitted its report. Having concluded that protecting literary property "would greatly tend to encourage genius, to promote useful discoveries and to the general extension of arts and commerce," the committee recommended that Congress pass a resolution encouraging the states to enact copyright laws. The resolution passed on May 2, 1783.

The resolution, and the continued lobbying by Webster and other authors, had an immediate effect. (Webster personally traveled to almost every colony, and in one instance, made a personal visit to General Washington at Mount Vernon, asking for help in convincing the Virginia legislature to pass copyright legislation.) By the end of 1784, eight states had adopted general copyright laws. By the end of 1786 all of the 13 states (except Delaware) had passed general copyright laws. Most of the laws, like the law passed in South Carolina, provided copyright protection for 14 years and significant penalties for infringement. But the Continental Congress, under the Articles of Confederation, had no power to pass national legislation.

National Patent and Copyright Laws

The Constitutional Convention convened in May 1787 to amend the Articles of Confederation and create a new, and stronger, national government. Four months later, on September 17, 1787, the new U.S. Constitution was signed. Article I, Section 8, listed the powers granted to Congress. It included the power to protect both literary and inventive property:

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 last clause of Article I, Section 8, specifically granted Congress the power "to make all laws which shall be necessary and proper for carrying into Execution the Foregoing powers . . . ."

The convention's journals do not record any debate over the intellectual property clause. Most of the clause's language already appeared in state copyright laws (including the South Carolina law that linked copyrights rights and patents). Many members of the convention had served in state legislatures when copyright laws were adopted and patent applications were approved. The intellectual property clause was unanimously approved and passed without debate. This suggests that the lawmakers who drafted the Constitution knew about the weakness of the state system that required inventors and writers to make multiple applications. Most had been lobbied by Webster and other authors. As one scholar has noted, "When the Constitutional Convention met, the ground had been well prepared."

When the first Congress convened on March 4, 1789, it formed a committee to draft a law under its constitutional power to protect intellectual property. The first bill was tabled until the next session. In the meantime, applications for patent and copyright protection began pouring in. (Many of the patent applications were for steam engines and other new machines. One was for "an infallible cure for the bite of a mad dog.") Excited by the potential benefit of the inventions described in the applications, the new president, George Washington, addressed Congress in January 1790 and urged action on passing legislation. I believe, he said, "that you will agree with me in opinion, that there is nothing which can better deserve your patronage than the promotion of science and literature." Within four months, Congress had passed legislation to protect patents and copyrights and established a system that in many respects remains in place today.

Congress chose to pass two separate bills, rather than a single bill for patents and copyrights. The patent law, effective April 10, 1790, granted to the patent owner "the sole and exclusive right and liberty" to make and sell his invention for a term not to exceed 14 years. When the patent term expired, the invention would become part of the public domain (which meant that anyone could use it and sell it). The law directed that patent applications must include a description of the invention and be reviewed by the secretary of state, the secretary of war, and the attorney general. The patent would issue if the invention was found to be "sufficiently useful and important." The secretary of state would keep a register of approved patents.

The copyright law was signed into law on May 31, 1790. Its title was "An Act for the encouragements of Learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies during the times therein mentioned." Like most of the laws passed by the states (and like England's Statute of Anne), the initial term for a copyright under the law was 14 years, and it could be renewed for an additional 14 years. Infringing works would be destroyed and a penalty imposed of 50 cents per page. Copies of each copyrighted work would be deposited with the secretary of state.

During the 200 years since they were signed, both laws have been amended many times. A new Patent Office was established in 1836 to be headed by a commissioner of patents. In 1952, Congress added a new requirement for patents. In addition to being useful and novel, a process or compound for which a patent is sought must also be "non-obvious." More recently, the term of a patent was extended to 20 years (from the date the patent application was filed). Changes to the copyright law have included extending the term (to the life of the author plus 70 years) and expanding the types of materials that can be copyrighted (to include new technologies such as sound recordings, photography, movies, and television). But the central concepts of intellectual property law remain the same and have undoubtedly bought more economic benefit to the nation than our nation's founders could have envisaged.

For Discussion and Writing

1. How would you define "intellectual property"?

2. What is the difference between a patent and a copyright?

3. What is the purpose of patent and copyright laws? Do you think they serve a useful purpose? Why or why not?   

Some Important Historical U.S. Patents

 Source: Significant Historical Patents of the United States, URL: www.uspat.com/historical/

A C T I V I T Y

Patent Application

The U.S. Patent Office has issued millions of patents over the years. On page xxxx, "Some Important Historical U.S. Patents" lists a few of the most significant ones.

Form small groups. Each group should do the following:

1. Review "Some Historical U.S. Patents" above.

2. Discuss and decide on the five inventions that had the most effect on American society.

3. Discuss and answer these questions:

a. How did each of the five specifically influence American society?

b. Do you think patent protection aided the development of each of these inventions? Why or why not?

c. What do you think would have happened to these inventions if patent protection had not existed? Why?

4. Be prepared to report your answers and reasoning to the class.