University of Baltimore Law Forum Volume 16 Article 2 Number 3 Spring, 1986 1986 Idea Protection and the Copyright Clause: The Problems of Preemption Laura Anne Moeller Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons Recommended Citation Moeller, Laura Anne (1986) "Idea Protection and the Copyright Clause: The rP oblems of Preemption," University of Baltimore Law Forum: Vol. 16 : No. 3 , Article 2. Available at: http://scholarworks.law.ubalt.edu/lf/vol16/iss3/2 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Idea Protection and the Copyright Clause: The Problems of Preemption by Laura Anne Moeller opyright does not protect ideas, purpose was to provide "a single Federal Background but only the expression of ideas. I system" of statutory copyright that "would The United States Constitution states, C This distinction, long recognized greatly improve the operation of the copy­ "Congress shall have the power ... To in copyright law as the idea-expression right law and would be much more effec­ Promote the Progress of Science and the dichotomy, was given express statutory tive in carrying out the basic constitutional useful Arts, by securing for limited Times recognition in the 1976 Copyright Act. 2 aims of uniformity and the promotion of to Authors and Inventors the exclusive Section 102(b) provides: "In no case does writing and scholarship." II Section 301 Right to their respective Writings and Dis­ copyright protection for an original work of attempts to state this principle "in the coveries." 13 The constitutional limitation authorship extend to any idea, procedure, clearest and most unequivocal language of copyright to works of "Authors" 14 has process, system, method of operation, con­ possible, so as to foreclose any conceivable been construed to impose a threshold re­ cept, principle, or discovery, regardless of misinterpretation of its unqualified inten­ quirement of an act of authorship - the the form in which it is described, explained, tion that Congress shall act preemptively, work must be original with him. This low illustrated, or embodied in such a work." 3 and to avoid the development of any vague level threshold has no real concern for While ideas have never received federal borderline areas between State and Federal aesthetic merit or creative genius, serving copyright protection, state law doctrines protection." 12 Unfortunately, this intent mainly to prevent copyrighting of public have traditionally provided protection for was not effected and the determination of domain material. 15 Copyright is also lim­ such creative investments, subject to su­ preemption under Section 301 is still sub­ ited to "Writings," 16 which has been de­ premacy clause and first amendment limi­ ject to some very diverse interpretations. fined to include any physical renderings of tations. the fruits of creative intellectual or aesthetic Copyright preemption issues invariably labor. 17 The primary purpose of copyright arose as state law became a source of pro­ protection is to encourage contributions to tection for intellectual property. In Sears, recorded knowledge. Reward in the form Roebuck & Co. v. StlfJe! Co. 4 and Compco of property rights to the author is a secon­ Corp. v. Day-Brite Lighting, Inc.,5 the Su­ dary consideration; the limited monopoly preme Court adopted a sweeping standard created being justified by the public inter­ offederal preemption, suggesting that state est in the creation and dissemination of in­ protection of intellectual property would tellectual works. IS As the Supreme Court be preempted whenever it conflicted, even recently reiterated in Harper & Row Pub­ indirectly, with the objectives of the fed­ lishers, Inc. v. Nation Enterprises,19 this eral copyright and patent laws. However, limited grant achieves an important public in Goldstein v. Calzfornia 6 and Kewanee purpose. "It is intended to motivate the Co. v. Bicron Oil Corp., 7 the Supreme creative activity of authors and inventors Court curbed the preemptive sweep of the by the provision of a special reward, and to Sears-Compco doctrine and allowed for allow the public access to the products of state protection in all areas which Congress their genius after the limited period of ex­ had left "unattended."s clusive control has expired." 20 The idea­ Section 301 of the 1976 Copyright Revi­ expression dichotomy balances these two sion Act9 was intended to provide a statu­ competing interests by limiting copyright tory resolution of the copyright preemption protection to the author's expression, not issues. The section effectively abolished the underlying ideas or facts he expresses. 21 common law copyright and established This limit on an author's control is argu­ that state laws regulating copyright gen­ ably necessary. Were an author able to pre­ erally would be preempted. 10 The avowed vent subsequent authors from using con- 6-The Law Forum/Spring, 1986 cepts, ideas, or facts contained in his or her Preemption Before the 1976 Act limited ambit and renewing the vigor of 42 work, the creative process would wither The Supreme Court considered the ques­ state doctrines. and scholars would be forced into unpro­ tion of federal preemption of copyright for Kewanee allowed trade secret protection ductive replication of the research of their the first time in Sears, Roebuck & Co. v. for processes that were disqualified from 22 predecessors. First amendment princi­ Stlffel Co., 31 and its companion case Compeo federal patent protection under one of the ples are also brought into play, as a broad Corp. v. Day-Brite Lighting, Inc. 32 In each, patent law's novelty requirements. 43 The dissemination of principles, ideas, and fac­ the Court reversed a decision under state Court expanded the potential scope ofstate tual information is crucial to the robust unfair competition law that prohibited the intellectual property legislation even fur­ public debate and informed citizenry that copying of an unpatentable light fixture. ther than had been done in Goldstein when are "the essence of self-government." 23 In Compeo, Justice Black articulated a it concluded that the "only limitation on The above-stated principles are part of sweeping standard of federal preemption. the states is that in regulating the area of the underlying problem ofpreemption. To patents and copyrights, they do not con­ allow state protection of ideas and other When an article is unprotected by a flict with the operation of the laws in this subject matter specifically excluded from patent or a copyright, state law may area passed by Congress." 44 Thus it would federal statutory protection may contravene not forbid others to copy that article. seem that even if the Goldstein inquiry the purpose ofthe copyright clause and vio­ To forbid copying would interfere showed that a subject matter has not been late the constitutional allocation of powers with the federal policy, found in Art. left unattended by Congress, a further in­ between federal and state authority.24 Ifit I, § 8, cl. 8, of the Constitution and in quiry must be made. Kewanee compared is determined that Congress, in balancing the implementing federal statutes, of the respective economic objectives and ef­ the competing interests in copyrighting, re­ allowing free access to copy whatever fects of the state and federal law, and the jected the protection ofideas and other ex­ the federal patent and copyright laws fundamental preemption issue thereby be­ cluded subject matter under Section 102(b) leave in the public domain. 33 came "not whether state law reaches mat­ as repugnant to the policy of the copyright Copyrights and patents were envisaged as ters also subject to federal regulation, but clause, then preemption would be man­ the only two constitutionally authorized whether the two laws function harmoni­ dated under the supremacy clause,25 re­ exceptions to a pervasive federal scheme of ously rather than discordantly."45 gardless of whether or not it is compelled free competition and imitation. 34 State under Section 301. If, however, the object courts, dissatisfied with the results in Sears­ of copyrighting is "simply to separate inter­ Compeo, resorted to artificial distinctions ests the law will protect from those it will between "copying" and "misappropria­ The Effect of Section 301 not, and define the levels and conditions of tion" to evade federal preemption.35 In the wake of the liberal authorization protection accorded," there would be no jus­ Goldstein v. Cahfornia 36 and Kewanee of state intellectual property protection af­ tification for the federal system to intrude Oil Co. v. Bicron Corp. 37 curbed the Sears­ forded by Goldstein and Kewanee, Section into state common law property systems Compeo preemptive sweep. In Goldstein, 301 of the 1976 Copyright Act was en­ and preempt rules that serve to protect an ChiefJustice Burger upheld the validity of acted.46 The section is intended "to make author's investment in creative activity.26 a state criminal law, even though the law clear, consistent with the 1964 Supreme Professor Goldstein suggests that the only extended protection equivalent to copy­ Court decisions in Sears . and Compco possible justification for striking down right to subject matter that had not yet re­ . that preemption does not extend to state property systems is that, under the ceived federal copyright protection. The causes of action, or subject matter outside supremacy clause, they impermissibly in­ standard used to determine whether the the scope of the revised Federal Copyright terfere with the objects of the federal copy­ federal statute required preemption was Statute."47 Legislative history on the pre­ right system.27 He finds little support for found in Hines v.