Reasons Why Copyright On Art And Music Could Be Deemed Unconstitutional

I’ve often discussed the original constitutional reasoning behind patents and copyright law, specifically the phrase we all know in Article 1, Section 8:

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;

From this, I still believe it’s quite clear that if copyright or patents are used in a way that does not “promote the progress” of those things, then it is unconstitutional to use copyright or patent law in that way. Not everyone agrees with me, of course. However, I’ve mostly focused on the “promote the progress” side of things, but haven’t delved as much into the details of “science and useful Arts.” I have read up extensively on what the founders meant by that, which can be simplified as “science” meaning scientific publishing/books and “useful Arts” meaning inventions. There’s also a fair bit of evidence that the real focus of the founders was on patents, rather than copyright. It wasn’t that they weren’t concerned at all about copyright (they were), but that the bigger issue was patents, and copyright was a sort of “throw in” at the behest of some vocal authors, along with some remembrance of states’ fights over local copyright policies. But, on the whole, it was patents that were considered of much more importance to progress than copyrights.

And, not only were copyrights initially for a “limited time” (14-years) but the first federal copyright law in the US limited copyright to books, maps and charts. Tom Bell points out that, based on this, and some other aspects of the early intentions of the founders, you can make an argument that copyright law, as per the constitution, was never intended for things like art and music. After all, what does art or music have to do with “science”? And if it really was intended to cover art and music, then why didn’t the founders have it cover music that was being composed at the time? Perhaps it was because they realized that music and paintings had nothing to do with science, and the Constitutional clause is only limited to promoting the progress of science and the useful arts (and, again, in the parlance of the day, “useful arts” was inventions). As Bell states:

Here as elsewhere, acquiescence to long-accepted practices has dulled us to the Constitution’s bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution’s plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however–“the Progress of Science and useful Arts”–and a great many works now covered by copyright cannot plausibly claim to do both.

Bell is interpreting the Constitutional clause in an even stricter manner — suggesting that any work covered by patents or copyright needs to promote both progress in science and in the useful arts, which is an even higher bar, though I’m not sure I’m convinced it was meant to be both. Also, many would retort that the Constitution grants the Congress the ability to determine if such monopolies promote the progress of science and the useful arts — and as long as Congress says they do, then we should consider that they do (no matter how wrong they might be). For a variety of reasons, that line of thinking is problematic, but it is the line that the Supreme Court has taken with copyright before (such as in the Eldred case). I’m not necessarily convinced of Bell’s thinking here, but it’s certainly a point worth pondering (and discussing).

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