Vol 7 No 1 - Roger Williams University School of Law

“Copyrights.” Trademarks are covered by the trade and commercepower.5United StatesArticle I, section 8, clause 8 of the United States Constitutionempowers the Congress to legislate: “To promote the Progress ofScience and useful Arts, by securing for limited Times to Authorsand Inventors the exclusive Right to their respective Writings andDiscoveries.” Trademarks are covered by the Commerce Clause.6Immediately upon reading these provisions one is drawn tocomment that the U.S. provision is written in a more flowery andprosaic language, perhaps representing the style of constitutionaldrafting of an earlier era or one consequent to a revolution. TheU.S. provision appears to be much more explicitly guided by apurpose for granting intellectual property rights—to promote theprogress of science and the useful arts by securing exclusive rightsfor limited times—than are the Australian or Canadianprovisions. The crucial issue that has arisen in relation to thesesources or fonts of intellectual property is the extent to which theyempower governments to propertize information. Are there anylimits? Is it possible to create rights in information that last inperpetuity? Different types of limits are asserted, such as:the purpose for which the IP right is granted/publicdomain user rights;type of information that the constitution will allow to bepropertized;length of time a property right will endure;medium in which the information exists, e.g., fixed in atangible form.The follow up question that has arisen is whether theselimits, if they exist, may be undermined or overridden by otherconstitutional clauses bestowing legislative power at the federallevel or by state laws.7 For example, can the Commerce Clause in5. See McDonald v. Vapor Can. Ltd., [1977] 2 S.C.R. 134 (Can.).6. The Trade-Mark Cases, 100 U.S. 82, 93-95 (1879).7. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989);