Talk:Copyright Clause

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This page needs help from legal professionals / students. This is of serious interest to the Wikipedia community and is currently inadequate. There're a number of cases defining and limiting the scope of these powers that should be cited here with brief explanations for them. We need more legal background as organized and succinct as possible. LH 07:21, 29 September 2006 (UTC)

Attribution

Material in this article was merged in from Intellectual property clause, which now redirects here. bd2412 T 19:11, 24 December 2005 (UTC)

Is "Copyright Clause" an accurate title though? Althought "intellectual property" is a problematic term, this clause also applies to patents. --Balleyne (talk) 05:34, 21 March 2008 (UTC)

It's the common name - I will look for sources, but I can tell you from firm experience that the clause is known by practitioners as the Copyright Clause. bd2412 T 05:44, 21 March 2008 (UTC)

I've heard it referred to as the Progress Clause, which redirects here. Lawrence Lessig refers to it as such in Free Culture. -FrankTobia (talk) 13:47, 21 March 2008 (UTC)

Ok, I did a Lexis search of federal cases and this is what I came up with:

Patent and Copyright Clause: 28 hits.

Copyright Clause: 178 hits (including the above, ergo 150 are Copyright Clause alone).

Patent Clause: 143 hits, but at least a dozen of those refer to clauses in contracts rather than the Constitution.

Copyright and Patent Clause: 23 hits.

Intellectual Property Clause: 17 hits.

Progress Clause: 9 hits, but most refer to provisions in contracts rather than the Constitution.

I suppose "Patent and Copyright Clause" would be sufficiently inclusive. bd2412 T 01:54, 22 March 2008 (UTC)

So I did some poking around. Within this paper I found "('Progress Clause,' formerly 'Copyright and Patent Clause,' 'Intellectual Property Clause,' or 'Exclusive Rights Clause')", which leads me to believe that the clause in question was once referred to by a number of different names, and is now referred to as the Progress Clause. This could explain your Lexis findings. Or it could mean something else entirely. bd2412, can you find the dates of the most recent cases for each different term and see if that changes things?

Or does anyone know an IP lawyer we can ask? -FrankTobia (talk) 04:51, 22 March 2008 (UTC)

As it happens, I am an IP lawyer (convenient, no?). I would call it either the Copyright Clause or the Intellectual Property Clause - maybe the Patent and Copyright Clause, but I have never heard it called the Progress Clause or the Exclusive Rights Clause before this discussion. Of the cases that I saw, I was struck that in the fairly recent Supreme Court case of Eldred v. Ashcroft, different justices referred to it in their various opinions by the first three names I mention in this paragraph. However, that was a copyright case, so they may have been less inclined to mention the patent part. bd2412 T 04:57, 22 March 2008 (UTC)

[EC] "Progress Clause" is just wrong here; extreme minority usage, almost unique to Lessig. In the last few years it appears one Circuit opinion used it: Golan v. Gonzales, 501 F.3d 1179 (10th. Cir 2007), and most of the opinion calls it the "Copyright Clause." This case was argued by Lessig, among others. A District Court used it in Kahle v. Ashcroft, 72 U.S.P.Q.2D (BNA) 1888 (N.D.Cal. 2004), but only quoting the briefs, and Lessig was also involved in Kahle. It doesn't appear "Progress Clause" had ever been used before. In contrast, "Copyright Clause" has been used over a dozen times since Eldred (U.S. 2003), which used it among other variants. All of these terms are in current use except "Progress Clause."

term	last use	last Supreme Court use
"Progress Clause"	Golan v. Gonzales, 501 F.3d 1179 (10th. Cir 2007) (in passing, prefers "Copyright Clause")	Never.
"Copyright Clause"	Golan v. Gonzales (10th. Cir 2007)	Eldred v. Ashcroft (U.S. 2003)
"Patent and Copyright Clause"	Golan v. Gonzales (10th. Cir 2007)	Eldred
"Patent Clause"	In re Nuijten, 500 F.3d 1346 (Fed. Cir. 2006)	Cent. Va. Cmty. College v. Katz, 546 U.S. 356 (2005) (in parenthesis)
"Copyright and Patent Clause"	Luck's Music Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C.Cir. 2005)	Eldred
"Intellectual Property Clause"	No COA use since Eldred	Eldred

"Copyright Clause" is the most common name, but it also goes by "Patent Clause" in that context, so I would favor moving to "Patent and Copyright Clause", if we find this title to restrictive. I'm happy with it here though. Cool Hand Luke 05:39, 22 March 2008 (UTC)

Haha, I didn't realize Lessig is the only person calling it the Progress Clause. Interesting, though, that so many different names for it show up in Eldred v. Ashcroft. I'm happy either way, whether this article stays here or moves to Patent and Copyright Clause. -FrankTobia (talk) 05:41, 22 March 2008 (UTC)

The "Progress Clause" is what it should be called on an NPOV basis. The clause at least contains the term 'Progress' and to promote the progress is evinced as its motive. Congress is not instructed to grant the privileges of copyright and patent - these are only inferred as being within Congress' power to grant, and how it chose to secure the author's exclusive right to their writings, and the inventor's exclusive right to their designs. Crosbie Fitch (talk) 17:43, 6 January 2012 (UTC)

Both Google's Ngram Viewer and the Legal Language Explorer (couldn't figure out how to link directly -- go to Legal Language Explorer and run a search for "Copyright Clause,Progress Clause,Intellectual Property Clause,Patent and Copyright Clause,Patent Clause,Copyright and Patent Clause") seem to suggest that "Copyright Clause" is by far the most common usage.

Between just the two conjunctive titles ("Patent and Copyright Clause" and "Copyright and Patent Clause"), the same two sources show "Patent and Copyright Clause" to be decidedly more common. Hartboy (talk) 22:48, 6 January 2012 (UTC)

That "Copyright and/or patent clause" is the more common usage is beside the point. NPOV and accuracy should be the principles, not popularity or idiomatic corruption. Crosbie Fitch (talk) 18:24, 10 January 2012 (UTC)

Who wrote the copyright clause?

I recall hearing it was Thomas Jefferson, but I have no reference basis for this. Do we know enough about the evolution of the Constitution as a document to pinpoint who conceived this clause, either its concept or its specific language? 206.57.41.114 (talk) 21:54, 24 April 2009 (UTC)

Actually, we know that exactly:

On August 18, 1787, three proposals were made to include intellectual property rights within the enumerated national powers. The first was a new proposal by Pinckney "to secure to authors exclusive rights for a limited time." James Madison made two alternative proposals: (1) "to secure to literary authors their copyrights for a limited time"; or (2) "to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries."

Madison’s and Pinckney’s proposals were referred to the Committee on Detail. ...

On September 5, 1787, the Committee on Detail reported the proposed copyright and patent sections of the Constitution to the Congress: "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 clause was unanimously agreed to and incorporated in the Constitution as adopted by the Convention on September 17, 1787.

William F. Patry, Copyright Law and Practice (1994).

Cheers! bd2412 T 22:18, 24 April 2009 (UTC)

Anachronistic ?

The first sentence reads:

"At the time that the Constitution was written, both patent and copyright protections had long existed in the United Kingdom." (emphasis mine)

Was "United Kingdom" the correct phrase for the 18th century or would it be more correct to say "Britain" or even "Europe" for this sentence? 66.97.214.17 (talk) 07:25, 29 December 2010 (UTC)

I think it's OK. The United Kingdom of Great Britan and Northern Ireland didn't exist until 1801, but the Kingdom of Great Britain was formed in 1707. According to the Wikipedia article, the Kingdom of Great Britain was occasionally referred to as the United Kingdom of Great Britain. So, I think it is OK, but Great Britain might be more accurate. Where I'm not so sure is to say that copyright had "long existed". The Statute of Anne, was about 80 years before the Constitution, does that qualify as having long existed? Maybe it does, I'm not sure. Perhaps rather than say a more vague term, it could be more precise.--RLent (talk) 20:50, 5 May 2011 (UTC)

Call it "Progress Clause"

It isn't just about copyrights —Preceding unsigned comment added by 134.193.112.62 (talk) 13:46, 10 March 2011 (UTC)

Two sections (and three years) above, I documented some cases where the different terms have been used. Copyright Clause was the most common usage in case law, but perhaps that's because judges in copyright cases are more likely to use the term; the Federal Circuit unsurprisingly says "Patent Clause." The Supreme Court has never called it the "Progress Clause," although that term is well-known in recent law journals.

When the most common usage butts heads with strict accuracy on Wikipedia, we often side with the most common usage. If we were to move away from "Copyright Clause," then "Intellectual Property Clause" or "Patent and Copyright Clause" would be better alternatives—they have been used many more times than "Progress Clause." Cool Hand Luke 17:05, 10 March 2011 (UTC)

The "Progress Clause" is what it should be called on an NPOV basis. The clause at least contains the term 'Progress' and to promote the progress is evinced as its motive. Congress is not instructed to grant the privileges of copyright and patent - these are only inferred as being within Congress' power to grant, and how it chose to secure the author's exclusive right to their writings, and the inventor's exclusive right to their designs. Crosbie Fitch (talk) 17:43, 6 January 2012 (UTC)

Progress

Heh. As if half of the industries which treat copyright as a monetary requirement actually advance "science and the useful arts."

I guess that's just what we live with though. I would tend to be in favor of the term progress clause, were it actually remotely treated as such. After all, the aforementioned industries tend to make up terms of their own when talking about copyright, and they end up sticking due to simple propagan... er... educational marketing. FoJacker46 75.170.243.23 (talk) 01:51, 14 July 2013 (UTC)

Mickey Mouse Forever

I disagree with the deletion of a sourced reference. That is is a blog is not a legitimate objection. In point of fact, several years ago the article's original reference here was to the Mickey Mouse Forever Act, and someone changed it to a dead-link reference to the Mickey Mouse Protection Act, still on page. Saying (as this editor did in his "explanation" for the deletion) "nah, I don't like the source" is not a legitimate reason to delete a sourced reference that is relevant. That the copyright protection is forever is more relevant to the passage in the article anyhow, because the context is whether repeated extensions violate the "for limited times" language of the Constitution.

The unilateral deletion on grounds of personal preference is improper. I ask for a discussion on this Talk page and the establishment of a consensus before the deletion is accepted. PraeceptorIP (talk) 19:47, 26 April 2016 (UTC)

PraeceptorIP, I don't know if you mean to, but you're mischaracterizing this. The starting point is that the article did not contain any reference to the "Mickey Mouse Forever Act", at least not for several years. Thus the status quo, the starting point, is that the article does not include your preferred "Mickey Mouse Forever Act" text.

In this edit you are adding it. That's okay. you're being bold. But being bold is subject to the WP:BRD "Bold/Revert/Discuss" process: you have been bold in making an edit; your edit has been reverted; and now the burden is on you to discuss, and persuade that the edit should remain.

You've actually turned the process on its head, maintaining that a 90-minute-old edit must be retained unless it can be shown otherwise. That's not how BRD works.

On my edit itself, you are not accurately quoting my edit summary. I did not write "nah, I don't like the source". My edit summary reads "nah; a use on someone's blog does not mean it was generally known as this; existing MM AKA is sufficient." There are some abbreviations here due to limited space on an edit summary, so let me expand on this a bit. The fact that someone used the term on his blog does not mean that the term is widely used; but it does not indicate that the Act was generally known as the "Mickey Mouse Forever Act." Yes, it shows that that blog writer used it that way, but that's not really material.

Furthermore, self-published material like blogs are generally not recognized as reliable sources; please read WP:BLOGS. Certain blogs are, sure. I would have no hesitation in citing to the Patry Copyright Blog, for example. William Patry's a well-known authority on copyright law. But "Mr. Schmidt's House of Education"? Mr. Schmidt is a "a teacher of Social Studies and Art." He does not qualify as "an established expert on the subject matter, whose work in the relevant field has previously been published by reliable third-party publications."

This is far from "I don't like the source". a more formal paraphrase of my edit summary is "A social studies & art teacher's blog is not a sufficiently reliable source for copyright matters to meet the Wikipedia:Verifiability policy requirements to qualify as a reliable source."

Finally, I would add that pejorative nicknames for the Sonny Bono Copyright Term Extension Act are off-topic for an article on the constitutional clause. Arguably, they should be included in Copyright Term Extension Act, subject to appropriate sourcing; but they're too far afield in the article on the constitutional provision. I would argue that both the reference to ""Mickey Mouse Forever Act" that you added as well as the previously existing reference to the "Mickey Mouse Protection Act" should be removed from this article. It's running into WP:NPOV and WP:COATRACK problems. (I note that the NPOV violation comports with my own POV: I think the term extension was a very bad law to have passed, and was disappointed when Eldred lost at the Supreme Court; but the fact that an NPOV violation happens to comport with my own POV does not make it any more appropriate to include.) I won't act on the latter, because it's been in the article for some time and based on this conversation, I assume its removal that might be controversial, but I invite comment on that.

In the meantime, I hope I've clarified the WP:BRD aspect for you and that you understand the procedural posture now. Given the longstanding absence of the "Mickey Mouse Protection Act" reference, it is the version in which that reference is absent that stands until a consensus is reached here. You are the proponent of the change and need to establish the consensus for it. I will again restore the content to its long-standing state, subject to your edit being reinstated if and when you get consensus here, in accordance with BRD. TJRC (talk) 21:21, 26 April 2016 (UTC)

TJRC: The discussion of what was the status quo in your last post is not quite correct. I checked the diffs and invite you to do so as well. In September 2009 and earlier (I didn't go much farther back) the History or Effects section of the article referred to the "Mickey Mouse Forever" (I will abbreviate this from here on as MMF) Act. It continued that way until September 13, 2010, when unregistered editor 155.247.166.28 removed a huge chunk of the article for unclear reasons (perhaps vandalism). The removed paragraphs included the one with the reference to MMF.

At 18:23 on 9/13/10, Hartboy began restoring the missing chunks. By 18:26 Hartboy restored the part of the Effects section that contained the reference to MMF with the same source and ref tag (a blog) as before (this link now seems dead, in 2016). Until 9/22/10 the passage remained the same. An intervening vandalism occurred, on 9/22/10, but PM800 restored it to Hartboy's last restoration (including the reference to MMF).

On 1/12/11 unregistered editor 151.207.246.4 changed MMF to MM Protection, without explanation, using the same source in the ref tag previously in place. This change by the unregistered user is what you term the status quo. I don't believe this unexplained change can be considered status quo.

I had not visited the article for a long time, but did today because of another edit. I then noticed the change from MMF to MM Protection and reverted it to the way Hartboy left it in 2010, but left in the MM Protection reference also since I did not feel justified in deleting it (I just restored the deleted MMF reference). I regard that (MMF) as the status quo since that was how the article stood before the unexplained deletion. I did put in a link to a different blog for MMF, however, because the old link was not working. (I simply googled MMF Act and took the first link I found that seemed reputable enough. I didn't see a basis to deprecate the Social Studies teacher. I read his blog and he seemed responsible. I know I have seen references to MMF other times but did not attempt an exhaustive search. I am sure I have seen it in IP professor blogs in threads complaining about Eldred.)

I should add that MM Forever better conveys the "limited times" objection to the repeated amendments extending copyright term than MM Protection does. It thus conveys more information than MMP, which just evokes Disney's persistent lobbying to eke out more revenue on Steamboat Willy. PraeceptorIP (talk) 01:45, 27 April 2016 (UTC)

In all fairness, I should add this: I went to LEXIS today and found 49 periodical references (mostly law review articles) to "Mickey Mouse Protection Act" – see this link: https://advance.lexis.com/search?crid=c3638706-7446-4fe4-84e9-6e8fa3c2ab6b&pdsearchterms=%22mickey%20mouse%20protection%20act%22&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=true – I didn't follow up with Google, but I suppose it is legitimate to refer to the MMPA. PraeceptorIP (talk) 17:26, 27 April 2016 (UTC)

I don't know if 49 is a lot or a little for copyright law review article coverage. However, searching Google Scholar for "Mickey Mouse Protection Act" (in quotes) gets saturated with hits, while "Mickey Mouse Forever" (I dropped "Act" to get more hits) gets zero positive hits. SamuelRiv (talk) 20:44, 25 January 2024 (UTC)