Copyright: The Constitutional Background

14 Jul

***This is not intended to be legal advice. First, this is an ESL Primer, and so is fairly simplified. Second, each person’s situation is different.  Please contact your attorney for legal advice as it applies to you!! 


The Constitutional Background

by Profs. Olivia L. Blessing, JD and Angela K. Blessing, MBA, JD

 via “Cultured Muse


When asked to think back to the American Constitution, many Americas recall dusty memories of political office age restrictions and voting laws. Yet, the founding fathers were not only devoted to taxes and wars; they were interested in cultural and scientific issues as well.

In fact, they considered art and inventions so important to American culture and development as to warrant Constitutional protection. In America, the Constitution is the highest law in the country, it trumps everything.  If it is in the Constitution, it is extremely important to the Government. And Copyright protection is one of those extra important issues the Government is involved in.

So what exactly does the Constitution say?  As we saw before, Article 1, Section 8 of the U.S. Constitution says Congress has the 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.”

Cool! Now, what does that mean?

Basically, it means that the Government encourages the arts and sciences by offering authors and inventors the right to stop anyone else from copying or using their writings or inventions for a limited amount of time.

More specifically, there are two things of note revealed in this rule.

  1. Copyright belongs to Federal Law

“Congress has the power. . . “

We are not going to get into the distinctions between U.S. federal and state government here; the concept is difficult enough for law students and needs no confusing explanations here.  Suffice to say, any argument or issue regarding Copyrights is going to end up in Federal Court with Federal Judges and controlled by Federal Law.  “Federal” meaning the national government based in Washington, D.C.  Think President, Supreme Court, the Senate, and the House of Representatives.

This is convenient in that artists and business professionals only need to remember the Federal approach to the law rather than struggling with 50 different states’ rules.

We’ll talk more about the  actual laws itself later.

  1. The Federal Govern Has a Very Specific Reason for Enforcing Copyright Law

“[T]o promote the progress of science and useful arts. . .”

Why on earth would the National Government get involved in the subject of rewarding author’s and creator’s for their work? It’s not like the Government is usually involved in business affairs such as this—they don’t honor plumbers for their work on the pipes or protect firefighters for their time fighting fires.  What makes “artists” and “inventors” so special that they get extra governmental rewards?

First of all, the purpose for Copyright protection is not to reward the artist.  It is to promote the sharing of knowledge, ideas, and information with the public who can use it to promote the public good. As the Supreme Court has explained, the Copyright Clause in the Constitution is intended to realize “the creation and dissemination of information. . . .[promoting] knowledge and learning” (Eric Eldred v. Ashcroft, 537 U.S. 186 (2003)).   They went on to say, the Clause accomplishes this goal by “motivating the creative activity of authors” via “the provision of a special reward.” (Sony Corp. of America v. Universal City Studies, Inc., 464 U.S. 417, 429 (1984)).  By offering a reward (a certain time during which the creator controls the use of their work), the Government encourages them to share it with the public thus benefitting society as a whole.

  1. What is the General Result of Copyright Law?

All in all, a Copyright gives the inventor a monopoly over the use of their work for an extensive period of time.

Traditionally, Americans have been adverse  to monopolies, but in the case of Copyrights it is generally considered a good thing that benefits society in the long run.  There are three primary results that Congress believes Copyrights achieve:

The Creation of New Ideas.  There is a reason developing countries focus so intention on “innovation” and “entrepreneurship.” Without this, the society stagnates and ceases to grow and improve.  Only with the introduction of new ideas, inventions, or discussions will the public continue to find new methods of becoming better and better versions of themselves.

Thus Congress offers inventors and creators a limited time of protection so that they might benefit from their work and thus be encouraged all the more to share what they discover with society.

First, it is during that time that the author or inventor will profit the most from their work. Think about it.  Once a book is available free online and people have free access to it, does the original creator make as much money as they do when they control all the prices and places where the book is sold?  No. Once you lose control, you start to lose money.  So in exchange for them sharing their creation with the world, Congress gives them a limited time to benefit monetarily.

Second, this protection gives the creator a great deal of control–monitoring who can sell, who has access, who can use the work and for what purpose.  Because of that control, they supposedly are more comfortable sharing their new findings.  Let’s say you are a really great film-creator, but your newest historical work deals with mature topics–illnesses, death, war.  You want people to have access to your movies, but you strongly believe that children younger than 13 are too young.  With a Copyright, you have the right to tell the theatres and sellers that the film must include a warning against showing it to children.  You also know that no one will distort your work or change your message because the Government will punish them if they do.  Because you have that control, Congress believes you feel more comfortable sharing your work with the world.

Fairness.  American law was founded upon the important concept of “fairness”—what is the most fair thing to do?  Fairness is why courts enforce contracts, why bad production is punished under torts, and why criminals are guaranteed a lawyer.  In our hearts, it seems only fair that people who work hard to create something should be rewarded for their hard work so long as the public still benefits. As John Locke, a great English philosopher, said “Every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say are properly his”(Locke, “Second Treatise of Civil Government“).

 The Dissemination of Those Ideas Freely Amongst the Public. The government does not want the creator to have a permanent monopoly over the work or concept forever.  Society will not improve unless the public can actually use the new inventions and ideas in their own lives and work.

Remember the use of the word “limited” in the Constitution.   After the time runs out, the idea/work belongs to the public and is free for their use.  They can in turn build upon it or work with it to create even newer ideas or inventions.


Having decided that Copyright is the best way to protect your efforts, you need to understand what Copyrights do and how the Government views them.  You benefit from the fact that Copyright protection was important enough to be in the Constitution; this means that the court should take your situation very seriously.  As an element of Federal Law, your protection goes beyond simply your local state or city—it extends nationwide. Furthermore, it is comforting to know that fairness is so important to the courts and that they are prepared to offer you an incentive for sharing what you’ve learned.

However, don’t forget that the final purpose of the law is not to benefit you but to benefit society as a whole.  Fairness is important, but it is not your strongest selling point if you are in a court case.  The government is primarily looking out for the interests of society, and that is where your strongest argument for the protection of your work should come from.  You need to convince the Government that by offering you this protection, they will be ultimately  helping to improve and help the  public.

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