The intellectual property clause of the United States Constitution confers power on the United States Congress. The clause states that Congress shall have power:
To promote the Progress of Science and useful Arts, by securingfor limited Timesto Authors and Inventors the exclusive Right to their respective Writings and Discoveries
The intellectual property clause actually confers two distinct powers. The power to secure for limited times to authors the exclusive right to their writings is the basis for U.S. copyright law. The power to secure for limited times to inventors the exclusive rights to their discoveries is the basis for the patent laws.
In Eldred v. Ashcroft, the United States Supreme Court rejected a challenge to the Sony Bono Copyright Term Extension Act that was based in part on the Intellectual Property Clause. Petitioner's in that case argued that successive retroactive extensions of copyright were functionally unlimited and hence violated the limited times language in the clause. Justice Ginsburg, writing for the Court, rejected this argument, reasoning that the terms provided by the Act were limited in duration and noting that Congress had a long history of granting retroactive extensions.
This clause and schedule abolish the stamp duty charges on transactions in intellectualproperty with effect from 28 March 2000.
By subparagraph (2), the consideration in such cases is to be apportioned between the intellectualproperty and the other property in a just and reasonable basis, and the instrument charged only in respect of the amount apportioned to the latter.
Paragraph 4 provides that intellectualproperty is to be disregarded for the purpose of certifying that instruments do not form part of a larger transaction or series of transactions, with effect from 28 March 2000, and that such certification shall be interpreted accordingly.
Congress may not, pursuant to the IntellectualPropertyClause of the Constitution, create "sweat of the brow" protection for compiled facts, at least insofar as such protection would extend to what the Supreme Court has termed the nonoriginal portion of such a compilation.
Either or both the IntellectualPropertyClause and the First Amendment may impose limitations on the exercise of congressional power under the Commerce Clause that would raise serious constitutional concerns regarding the constitutionality of the bill.
Accordingly, to the extent that Feist may be read to have construed the IntellectualPropertyClause to have established a kind of constitutionally prescribed public domain for factual material on which Congress may not infringe (absent, perhaps, private contractual agreements), a broad expansion of the "hot news" tort would appear to raise serious constitutional concerns.
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