CRS Annotated Constitution

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Exclusive Power as an Adjunct to Other Powers

In the cases just reviewed, it was attempted to close the mails to communication which were deemed to be harmful. A much broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935.1321 To induce compliance with the regulatory requirements of that act, Congress denied the privilege of using the mails for any purpose to holding companies that failed to obey that law, irrespective of the character of the material to be carried. Viewing the matter realistically, the Supreme Court treated this provision as a penalty. While it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid,1322 it declared that “Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province. . . .”1323

State Regulations Affecting the Mails

In determining the extent to which state laws may impinge upon persons or corporations whose services are utilized by Congress in executing its postal powers, the task of the Supreme Court[p.293]has been to determine whether particular measures are consistent with the general policies indicated by Congress. Broadly speaking, the Court has approved regulations having a trivial or remote relation to the operation of the postal service, while disallowing those constituting a serious impediment to it. Thus, a state statute, which granted to one company an exclusive right to operate a telegraph business in the State, was found to be incompatible with a federal law, which, in granting to any telegraph company the right to construct its lines upon post roads, was interpreted as a prohibition of state monopolies in a field Congress was entitled to regulate in the exercise of its combined power over commerce and post roads.1324

An Illinois statute, which, as construed by the state courts, required an interstate mail train to make a detour of seven miles in order to stop at a designated station, also was held to be an unconstitutional interference with the power of Congress under this clause.1325 But a Minnesota statute requiring intrastate trains to stop at county seats was found to be unobjectionable.1326

Local laws classifying postal workers with railroad employees for the purpose of determining a railroad’s liability for personal injuries,1327 or subjecting a union of railway mail clerks to a general law forbidding any “labor organization” to deny any person membership because of his race, color or creed,1328 have been held not to conflict with national legislation or policy in this field. Despite the interference pro tanto with the performance of a federal function, a State may arrest a postal employee charged with murder while he is engaged in carrying out his official duties,1329 but it cannot punish a person for operating a mail truck over its highways without procuring a driver’s license from state authorities.1330

Clause 8. The 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.[p.294]


Scope of the Power

This clause is the foundation upon which the national patent and copyright laws rest, although it uses neither of those terms. So far as patents are concerned, modern legislation harks back to the Statute of Monopolies of 1624, whereby Parliament endowed inventors with the sole right to their inventions for fourteen years.1331 Copyright law, in turn, traces back to the English Statute of 1710, which secured to authors of books the sole right of publishing them for designated periods.1332 Congress was not vested by this clause, however, with anything akin to the royal prerogative in the creation and bestowal of monopolistic privileges.1333 Its power is limited with regard both to subject matter and to the purpose and duration of the rights granted. Only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts.1334 The concept of originality is central to copyright, and it is a constitutional requirement Congress may not exceed.1335 While Congress may grant exclusive rights only for a limited period, it may extend the term upon the expiration of the period originally specified, and in so doing may protect the rights of purchasers and assignees.1336 The copyright and patent laws do not have, of their own force, any extraterritorial operation.1337


1321 49 Stat. 803, 812, 813 , 15 U.S.C. §§ 79d , 79e.
1322 Electric Bond Co. v. SEC, 303 U.S. 419 (1938).
1323 Id., 442.
1324 Pensacola Tel. Co. v. Western Union Telegraph Co., 96 U.S. 1 (1878).
1325 Illinois Central Railroad v. Illinois, 163 U.S. 142 (1896).
1326 Gladson v. Minnesota, 166 U.S. 427 (1897).
1327 Price v. Pennsylvania R. Co., 113 U.S. 218 (1895); Martin v. Pittsburgh & Lake Erie R.R., 203 U.S. 284 (1906).
1328 Railway Mail Assn. v. Corsi, 326 U.S. 88 (1945).
1329 United States v. Kirby, 7 Wall. (74 U.S.) 482 (1869).
1330 Johnson v. Maryland, 254 U.S. 51 (1920).
1331 Pennock v. Dialogue, 2 Pet. (27 U.S.) 1, 17, 18 (1829).
1332 Wheaton v. Peters, 8 Pet. (33 U.S.) 591, 656, 658 (1834).
1333 Cf. Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966).
1334 Kendall v. Winsor, 21 How. (62 U.S.) 322, 328 (1859); A. & P. Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950).
1335 Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991) (publisher of telephone directory, consisting of white pages and yellow pages, not entitled to copyright in white pages, which are only compilations). “To qualify for copyright protection, a work must be original to the author. . . . Originality, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses some minimal degree of creativity. . . . To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice.” Id., 345. First clearly articulated in The Trade Mark Cases, 100 U.S. 82, 94 (1879), and Burrow–Giles Lithographic Co. v. Saroney, 111 U.S. 53, 58–60 (1884), the requirement is expressed in nearly every copyright opinion, but its forceful iteration in Feist was noteworthy, because originality is a statutory requirement as well, 17 U.S.C. Sec. 102 (a), and it was unnecessary to discuss the concept in constitutional terms.
1336 Evans v. Jordan, 9 Cr. (13 U.S.) 199 (1815); Bloomer v. McQuewan, 14 How. (55 U.S.) 539, 548 (1852); Bloomer v. Millinger, 1 Wall. (68 U.S.) 340, 350 (1864); Eunson v. Dodge, 18 Wall. (85 U.S.) 414, 416 (1873).
1337 Brown v. Duchesne, 19 How. (60 U.S.) 183, 195 (1857). It is, however, the ultimate objective of many nations, including the United States, to develop a system of patent issuance and enforcement which transcends national boundaries; it has been recommended, therefore, that United States policy should be to harmonize its patent system with that of foreign countries so long as such measures do not diminish the quality of the United States patent standards. President’s Commission on the Patent System, To Promote the Progress of Useful Arts, Report to the Senate Judiciary Committee, S. Doc. No. 5, 90th Cong., 1st sess. (1967), recommendation XXXV. Effectuation of this goal was begun with the United States agreement to the Berne Convention (the Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886), and Congress’ conditional implementation of the Convention through legislation. The Berne Convention Implementation Act of 1988, P. L. 100– 568, 102 Stat. 2853 , 17 U.S.C. Sec. 101 and notes.
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