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Archived updates for Friday, November 19, 2004

Interpreting the Progress Clause

According to a paper by Dotan Oliar, the intellectual property "Progress Clause" in the U.S, Constitution originated from eight proposals made by Charles Pinckney and James Madison that were derived from American states' enactments. It was intended to serve as a limitation on Congress' power to grant intellectual property rights. However, the Supreme Court has construed and enforced these limitations on Congress' intellectual property power using a non-deferential approach.

In his view, the social, cultural and economic costs of past statutes that expand the boundaries of intellectual property are substantial, while the social benefits are often very small. Courts should therefore take the social effects of intellectual property statutes into account when interpreting these statutes. He goes on to suggest an array of interpretive possibilities for giving the Progress Clause a meaning that dovetails with his view of the Clause's text, history, and precedent.
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