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CRS Annotated Constitution

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[p.298]

Nature and Scope of the Right Secured

The leading case bearing on the nature of the rights which Congress is authorized to secure is that of Wheaton v. Peters. Wheaton charged Peters with having infringed his copyright on the twelve volumes of “Wheaton’s Reports,” wherein are reported the decisions of the United States Supreme Court for the years from 1816 to 1827 inclusive. Peters’ defense turned on the proposition that inasmuch as Wheaton had not complied with all of the requirements of the act of Congress, his alleged copyright was void. Wheaton, while denying this assertion of fact, further contended that the statute was only intended to secure him in his pre–existent rights at common law. These at least, he claimed, the Court should protect. A divided Court held in favor of Peters on the legal question. It denied, in the first place, that there was any principle of the common law that protected an author in the sole right to continue to publish a work once published. It denied, in the second place, that there is any principle of law, common or otherwise, which pervades the Union except such as are embodied in the Constitution and the acts of Congress. Nor, in the third place, it held, did the word “securing” in the Constitution recognize the alleged common law principle Wheaton invoked. The exclusive right Congress is authorized to secure to authors and inventors owes its existence solely to the acts of Congress securing it,1358 from which it follows that the rights granted by a patent or copyright are subject to such qualifications and limitations as Congress, in its unhampered consultation of the public interest, sees fit to impose.1359

The Court’s “reluctance to expand [copyright] protection without explicit legislative guidance” controlled its decision in Sony Corp. v. Universal City Studios,1360 in which it held that the manufacture and sale of video tape (or cassette) recorders for home use do not constitute “contributory” infringement of the copyright in[p.299]television programs. Copyright protection, the Court reiterated, is “wholly statutory,” and courts should be “circumspect” in extending protections to new technology. The Court refused to hold that contributory infringement could occur simply through the supplying of the devices with which someone else could infringe, especially in view of the fact that VCRs are capable of substantial noninfringing “fair use,” e.g., time shifting of television viewing.

In giving to authors the exclusive right to dramatize any of their works, Congress did not exceed its powers under this clause. Even as applied to pantomine dramatization by means of silent motion pictures, the act was sustained against the objection that it extended the copyright to ideas rather than to the words in which they were clothed.1361 But the copyright of the description of an art in a book was held not to lay a foundation for an exclusive claim to the art itself. The latter can be protected, if at all, only by letters patent.1362 Since copyright is a species of property distinct from the ownership of the equipment used in making copies of the matter copyrighted, the sale of a copperplate under execution did not pass any right to print and publish the map which the copperplate was designed to produce.1363 A patent right may, however, be subjected, by bill in equity, to payment of a judgment debt of the patentee.1364

Power of Congress Over Patent Rights

Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the Government without just compensation.1365 Congress may, however, modify rights under an existing patent, provided vested property rights are not thereby impaired,1366 but it does not follow that it may authorize an inventor to recall rights that he has granted to others or reinvest in him rights of property that he had previously conveyed for a valuable and fair consideration.1367 Furthermore, the rights[p.300]the present statutes confer are subject to the antitrust laws, though it can be hardly said that the cases in which the Court has endeavored to draw the line between the rights claimable by patentees and the kind of monopolistic privileges which are forbidden by those acts exhibit entire consistency in their holdings.1368


Footnotes

1358 Wheaton v. Peters, 8 Pet. (33 U.S.) 591, 660 (1834); Holmes v. Hurst, 174 U.S. 82 (1899). The doctrine of common–law copyright was long statutorily preserved for unpublished works, but the 1976 revision of the federal copyright law abrogated the distinction between published and unpublished works, substituting a single federal system for that existing since the first copyright law in 1790. 17 U.S.C. Sec. 301 .
1359 Wheaton v. Peters, 8 Pet. (33 U.S.) 591, 662 (1834); Evans v. Jordan, 9 Cr. (13 U.S.) 199 (1815). A major limitation of copyright law is that “fair use” of a copyrighted work is not an infringement. Fair use can involve such things as citation for the use of criticism and reproduction for classroom purposes, but it may not supersede the use of the original work. See Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985) (an unauthorized 300 to 400 word excerpt, published as a news “scoop” of the authorized prepublication excerpt of former President Ford’s memoirs and substantially affecting the potential market for the authorized version, was not a fair use within the meaning of Sec. 107 of the Copyright Act. 17 U.S.C. Sec. 107 )

Supplement: [P. 298, add to n.1359:]

For fair use in the context of a song parody, see Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569 (1994) .

1360 464 U.S. 417, 431 (1984).
1361 Kalem Co. v. Harper Bros., 222 U.S. 55 (1911). For other problems arising because of technological and electronic advancement see, e.g., Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968); Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984).
1362 Baker v. Selden, 101 U.S. 99, 105 (1880).
1363 Stevens v. Gladding, 17 How. (58 U.S.) 447 (1855).
1364 Ager v. Murray, 105 U.S. 126 (1882).
1365 James v. Campbell, 104 U.S. 356, 358 (1882). See also United States v. Burns 12 Wall. (79 U.S.) 246, 252 (1871); Cammeyer v. Newton, 94 U.S. 225, 234 (1877); Hollister v. Benedict Manufacturing Co., 113 U.S. 59, 67 (1885); United States v. Palmer, 128 U.S. 262, 271 (1888); Belknap v. Schild, 161 U.S. 10, 16 (1896).
1366 McClurg v. Kingsland, 1 How. (42 U.S.) 202, 206 (1843).
1367 Bloomer v. McQuewan, 14 How. (55 U.S.) 539, 553 (1852).
1368 See Motion Picture Co. v. Universal Film Co., 243 U.S. 502 (1917); Morton Salt Co. v. Suppiger Co., 314 U.S. 488 (1942); United States v. Masonite Corp., 316 U.S. 265 (1942); United States v. New Wrinkle, Inc., 342 U.S. 371 (1952), where the Justices divided 6 to 3 as to the significance for the case of certain leading precedents; and Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965).
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