The Overlooked French Influence on the Intellectual Property Clause Sean M

University of Washington School of Law UW Law Digital Commons Articles Faculty Publications 2015 The Overlooked French Influence on the Intellectual Property Clause Sean M. O'Connor University of Washington School of Law Follow this and additional works at: https://digitalcommons.law.uw.edu/faculty-articles Part of the Intellectual Property Law Commons, and the Legal History Commons Recommended Citation Sean M. O'Connor, The Overlooked French Influence on the Intellectual Property Clause, 82 U. Chi. L. Rev. 733 (2015), https://digitalcommons.law.uw.edu/faculty-articles/196 This Article is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusion in Articles by an authorized administrator of UW Law Digital Commons. For more information, please contact [email protected]. The Overlooked French Influence on the Intellectual Property Clause Sean M. O’Connor† The Intellectual Property Clause (“IP Clause”) of the US Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive property rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “Science” and “useful Arts” do not cleanly map onto the subject matter of current patent and copyright systems. As the Su- preme Court has noted, under popular usage of the terms “arts” and “science,” one would expect patents to promote science and copyrights to promote arts, yet we know from the historical record that exactly the opposite is the case. Other terms, such as “progress” and “discoveries,” remain contested. IP Clause interpretations to date rely exclusively on British legal and intellectual antecedents. I argue that the great French Encyclopédie project—a landmark of the mid-eighteenth-century En- lightenment—provides crucial context to the IP Clause. James Madison, a drafter of the IP Clause, owned and approvingly cited the work. Founding Fathers Thom- as Jefferson and Benjamin Franklin were enthusiastic advocates of the Ency- clopédie. The Encyclopédie has as its twin goals the promotion of progress in science and in mechanical (useful) arts. I argue that the reliance of early courts and commentators on British antecedents to interpret the federal patent and copyright statutes led to an improperly narrow sense of the context of the IP Clause. Using entries from the Encyclopédie on “art,” “science,” “discoveries,” “inventions,” “writers/authors,” and other relevant topics, I propose a new interpretation of the IP Clause that is more coherent and compelling than existing accounts. † Boeing International Professor of Law and Assistant Dean for Law, Business & Technology Initiatives, University of Washington School of Law. I thank Jane Ginsburg, Daniel Gervais, Barton Beebe, Geoff Turnovsky, Greg Hicks, Hugh Spitzer, Helen An- derson, Theo Myrhe, Zahr Said, Adam Mossoff, participants at faculty colloquiums at Boston College School of Law, Temple University School of Law, and University of Wash- ington School of Law, and H. Tomás Gómez-Arostegui for very helpful eighteenth- century sources on “useful arts.” I especially thank the incredible research librarians at the Gallagher Law Library: Cheryl Nyberg, Mary Whisner, Anna Endter, and Grace Feldman. I am particularly indebted to Professor Dena Goodman, a director of the Ency- clopédie of Diderot & d’Alembert Collaborative Translation Project at the University of Michigan, for providing an advance translation of the entry on “Discover, Find” that was not yet available to the public. For comments and assistance, I thank Benjamin Heller, Peter Menell, Rob Merges, and Michael Risch. I would also like to thank Brennen John- son for excellent research assistance. Generous research funding for this Article was provided by the University of Washington School of Law and a Leonardo da Vinci Fel- lowship from the Center for Protection of Intellectual Property at George Mason Univer- sity School of Law. All errors are my own. Comments are welcome at [email protected]. 733 03 O'CONNOR_ART_FINAL (CKB) (DO NOT DELETE) 7/16/2015 10:16 AM 734 The University of Chicago Law Review [82:733 INTRODUCTION .....................................................................................................734 I. THE CONVENTIONAL ANGLOCENTRIC ACCOUNT OF THE IP CLAUSE AND INTERPRETATIONS OF ITS KEY TERMS AND STRUCTURE .................................743 A. Nineteenth-Century Antecedents .......................................................749 B. The First Wave: Patent-Practitioner IP Histories and the “Standard of Invention” .......................................................................753 C. The Second Wave: Responses to Legislative Process and Cases Leading to the Copyright Act of 1976 .................................................760 D. The Third Wave: Responses to Business-Method Patents, the Copyright Term Extension Act, and Beyond ......................................762 II. THE FRENCH ENLIGHTENMENT AND ENCYCLOPÉDIE AS THE LEADING INTELLECTUAL FRAMEWORK OF THE LATE EIGHTEENTH-CENTURY WEST .....773 A. Historical Development of “Science” and “Arts” .................................773 B. Origins and Scope of the Enlightenment “Progress Project” .............785 C. The Encyclopédie as a “Reasoned Dictionary of the Sciences, Arts, and Trades” .................................................................................787 III. THE FRENCH ENCYCLOPÉDISTES’ INFLUENCE ON MADISON, JEFFERSON, AND FRANKLIN ..............................................................................................803 IV. VIEWING THE IP CLAUSE THROUGH THE LENS OF THE ENCYCLOPÉDIE SOLVES NUMEROUS INTERPRETIVE PUZZLES .................................................809 CONCLUSION ........................................................................................................826 INTRODUCTION Congress shall have Power . To promote the Progress of Science and useful Arts, by securing for limited Times to Au- thors and Inventors the exclusive Right to their respective Writings and Discoveries. US Const Art I, § 8, cl 8 The IP Clause1 remains a puzzle for courts and commentators.2 It authorizes Congress to enact legislation securing exclusive rights for authors and inventors to “promote the Progress of Science and useful Arts” and is invoked to justify passage of 1 US Const Art I, § 8, cl 8. 2 See, for example, Edward C. Walterscheid, The Nature of the Intellectual Proper- ty Clause: A Study in Historical Perspective 212 (Hein 2002) (“It may well be that [the Framers] perceived no comment to be necessary in that the [IP Clause] was considered on its face to be self-explanatory. If so, this was most unfortunate because of the ambigu- ity inherent in several of its key terms.”); Edward C. Walterscheid, Authors and Their Writings, 48 J Copyright Society USA 729, 773 (2001) (criticizing the Framers for creat- ing “significant interpretational problems” by choosing terms such as “discoveries” and “writings”). 03 O'CONNOR_ART_FINAL (CKB) (DO NOT DELETE) 7/16/2015 10:16 AM 2015] The Overlooked French Influence on the IP Clause 735 copyright and patent laws.3 But the IP Clause does not specifical- ly refer to copyrights or patents, even though the Framers were well aware of these systems.4 Further, terms such as “useful Arts” seem obscure, while others, such as “Science,” appear to have very different meanings from our modern usage, as the Supreme Court recently noted.5 Other key terms such as “Pro- gress” remain hotly contested. A troublesome term under all accounts is “Discoveries.”6 While generally held by courts to be what inventors produce—because authors must be producing the “writings” named in the Clause7—most people tend to think of discoveries as something made by scientists or explorers. But those discoveries—in the form of laws of nature, abstract ideas, naturally occurring phenomena, or other facts about the world— are exactly the sorts of things that have always been excluded from patent protection in the United States.8 Accordingly, no existing interpretation of the IP Clause is satisfactory. The problem may be that these interpretations rely exclusively on British legal and intellectual precedents, with some references to contemporaneous American dictionaries. This seems intuitively correct insofar as the new United States was comprised of former British colonies. But after the Revolution, significant parts of British law were rejected by both the federal government and the states. The Constitution was drafted to create 3 US Const Art I, § 8, cl 8. 4 See Walterscheid, The Nature of the Intellectual Property Clause at 13 (cited in note 2) (“There is little question that the Framers were cognizant of the extant English patent custom and copyright practice.”). 5 See Golan v Holder, 132 S Ct 873, 888 (2012). The casual modern observer might assume that the objects of copyright protection would be the “useful Arts”—even though objects with practical functions are not copyrightable. See 17 USC § 102 (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.”). One might also assume that “Science” is the object of patent protection—even though laws of nature and naturally occurring phenomena are not patentable. See Diamond v Diehr, 450 US 175, 185 (1981). Many legal historians instead correctly hold that “useful Arts” covers inventions (as a variant on the old

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