There is little direct evidence about the Patent and Copyright Clause’s original meaning. The clause neither represented a legal tradition of great historical and practical significance to the Framers, such as the availability of habeas corpus (see Article I, Section 9, Clause 2), nor was it one of the great structural innovations of the Constitution that attracted so much attention because of its gravity and novelty. Rather, the clause appears to have been largely an after-thought.

The clause was neither the subject of much debate during the Constitutional Convention nor was it a major topic of discussion during the ratification debates. James Madison, in his wrap-up of “miscellaneous powers” in The Federalist No. 43, devoted only a single paragraph to the clause, justifying it both on the need to provide a national, uniform standard of intellectual property regulation as well as on the merits of the protection itself. “The copyright of authors,” Madison wrote, “has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.” On this point Madison was mistaken; the House of Lords had decided in 1774 that copyright was not a common-law right, and invention patents had always been granted as a matter of political discretion, not legal right. In the very same breath as he extolled a natural-rights view of intellectual property, however, Madison also struck upon an incentives-based approach, justifying intellectual property regulation by its contribution to the public, as well as private, benefit. Madison concluded, “The public good fully coincides in both cases with the claims of individuals.” He did not address the question of what to do in cases in which the public’s good is not served by extending intellectual property rights.

In the end, no one appears to have objected seriously to the clause. George Mason and Thomas Jefferson (privately to Madison), along with a few other Anti-Federalists, raised concerns over the granting of state-sanctioned monopolies, which the Framers certainly disfavored as a general matter. But no one took the clause to authorize federal trade monopolies, and such objections were rebuffed by Federalists (in Jefferson’s case by Madison himself) by reference to the value of granting copyright and patents and the need for national uniformity, which no one appears to have questioned. What little direct evidence we have about the circumstances of the clause’s adoption has been of little help in resolving the disputes that have arisen, many of them quite recently, over its meaning.

The clause’s text, too, has been of limited help in resolving modern disputes over its meaning. Although some commentators have developed complex textual arguments about the clause, courts have been wary of applying the many limits potentially to be mined from its wording. In Graham v. John Deere Co. (1966), the Court discussed the limits of Congress’s power under the clause. It declared that Congress may not grant patents “without regard to the innovation, advancement or social benefit gained thereby” or “whose effects are to remove existent knowledge from the public domain or to restrict free access to materials already available.” More generally, the Court opined that the patent system as adopted must “promote the Progress of . . . useful Arts.” In Feist Publications, Inc. v. Rural Telephone Service Co. (1991), the Court stated that because the clause permits copyright protection only for creative works, facts cannot be copyrighted. But neither Graham nor Feist involved actual challenges to Congress’s power; neither case required the Court to apply the limits it had found in the clause. In fact, the Court has been deferential to Congress. Thus, although the Court has frequently repeated its statement in Graham that “[t]he clause is both a grant of a power and a limitation,” at the same time it has explained that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright and Patent Clause’s objectives.” Eldred v. Ashcroft (2003).

Indeed, with one early exception, the Court has deferred to Congress’s view of its own powers under the clause. For example, in Eldred, the Court upheld not only Congress’s extension of the duration of copyrights to almost five times what it was in the 1790 copyright act, it also ruled that the requirement that copyrights be for “limited Times” did not prevent Congress from extending the copyright term for a work already under protection. Similarly, in Golan v. Holder (2012), the Court upheld section 514 of the Uruguay Round Agreements Act (which extended protection to some works previously in the public domain), eliding the Court’s pronouncement in Graham as dicta and rejecting a narrower interpretation of the clause as authorizing only copyright grants that promote the creation of new works. Rather, the Court deferred to Congress’s possible interpretation that the withdrawal of works from the public domain could, on the whole, “promote the diffusion of knowledge.” The early exception to the pattern of deference was in the Trade-Mark Cases (1879), in which the Court held that the clause did not provide authority for federal trademark legislation. Even that limit was eventually circumvented by Congress’s use of the commerce power as authority for trademark legislation.

Although the history of the clause’s adoption has not featured prominently in the Court’s jurisprudence, history has. Indeed, Justice Ruth Bader Ginsburg (echoing Justice Oliver Wendell Holmes, Jr.) wrote in Eldred that, when it comes to interpreting the clause, “a page of history is worth a volume of logic.” In a series of cases, the Court referred to early congressional practice under the clause in interpreting the clause’s reach. In Burrow-Giles Lithographic Co. v. Sarony (1884), the Court held that protection for photographs was within the clause even though the clause limits copyright to “Writings” and “Authors,” in part because the first Congress granted copyright protection to other graphical works (such as maps and charts). The Court later extended this logic to allow protection for sculptures as well. Similarly, in both Eldred and Golan, congressional practice under the clause figured prominently in the Court’s interpretation, including both the extension of copyright terms for existing works and in the protection of works previously in the public domain.

It is possible that, given the strongly deferential approach taken by the Court in Eldred and Golan, the Court will permit virtually any grant under the clause. The prohibition against copyright in facts contained in Feist, for instance, could just as easily be characterized as dicta as was the prohibition against recapture of the public domain contained in Graham. Should the Court encounter legislation seeming to exceed the clause’s limits, proponents of such measures might rely on other constitutional powers, such as the power to regulate interstate commerce and, because some of new grants might be intended to bring the United States into compliance with international intellectual property conventions, the treaty power (raised but not relied upon by the Court in Holder). Such reliance on other clauses has been the subject of much debate by commentators but little action by courts. The Court’s decision in National Federation of Independent Business v. Sebelius (2012) striking the “individual mandate” provisions of the Patient Protection and Affordable Care Act of 2010 as beyond the power to regulate interstate commerce but upholding them as an exercise of the taxing power suggests that the powers enumerated in Article I, Section 8 are indeed alternative rather than exclusive and that, should the Court’s deference to Congress’s interpretation of the Patent and Copyright Clause run out, legislation pursuant to other powers is a potential avenue.

Just as proponents of broader exclusive rights have looked to other parts of the Constitution, so too have their opponents. In Harper & Row Publishers, Inc. v. Nation Enterprises (1985), the Court acknowledged the possibility that copyright legislation might result in so heavy a burden on speech as to run afoul of the First Amendment. In Eldred v. Ashcroft, the Court held that copyright term extension did not call for heighted First Amendment scrutiny because “the traditional contours of copyright protection” include protection for the expressive interests normally guaranteed by the First Amendment, prompting the question of whether some copyright protection (such as the removal of works from the public domain) might deviate far enough from those traditional contours to require heighted First Amendment scrutiny. In Golan, the Court clarified that those “traditional contours” with First Amendment significance are limited to the idea/expression dichotomy and the fair use defense and that removal of works from the public domain, for instance, presents no serious First Amendment problem.

Even given the seemingly broad discretion the Court has given Congress with regard to patent and copyright laws, with the ever-increasing importance of information to the economy, it is likely that constitutional challenges to intellectual property laws will continue.