5 ms·

Based on the text of the IP clause of the US Constitution I have wondered whether selling or licensing of IP (or even assigning it to a corporation) is technica

Based on the text of the IP clause of the US Constitution I have wondered whether selling or licensing of IP (or even assigning it to a corporation) is technically allowable. https://constitution.congress.gov/browse/article-1/section-8/clause-8/ https://constitution.congress.gov/browse/article-1/section-8... : 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; "Exclusive Right" means exclusive right. And I don't think the definition has changed much since the US Constitution was written. https://www.etymonline.com/word/exclusive https://www.etymonline.com/word/exclusive I think it must at least be licensable, or authors couldn't sell copies of their works. But whether the IP rights can be sold is another question.

freejazz 3y ago
It means the right is exclusively granted with them. I.e. no one besides the author gets to control the exclusive rights of a patent. By your logic, they can't even license it because "it's an exclusive right".
- anonymouskimmer 3y ago
  They control the license according to the terms of a license. But once a patent is sold the author of it no longer has any right to it. Authors and inventors are mentioned with the same language in the clause. Since it has always been true that authors can basically only profit from their writings by selling copies or originals of their works (without selling the right to the copyrighted material itself) then some form of licensing is necessarily included in the clause for both copyright and patents. There may have been journalists at the time who wrote works for newspapers owned by others. If so, this would be a reason to include the right of selling all of the rights to one's writings or inventions in the clause. I genuinely don't know if this was the case though.
  - freejazz 3y ago
    Authors can license all of their rights away. They can sell their copyrights - I don't see your point...
    - anonymouskimmer 3y ago
      I'm asking whether the laws which allow this are within scope of the US Constitution's clause on intellectual property rights. There are plenty of laws which have been ruled unconstitutional. But it takes someone making the complaint to a court for this to happen. Otherwise the legislature does whatever it wants. Currently a majority of the US Supreme court thinks that the status quo at the time of the writing of the US Constitution or its amendments has bearing as to the meaning of those texts. Thus I mentioned back then authors sold copies of their works while retaining all other rights as indicating that "licensing" is within this clause. Whether or not total sales of the rights to the work is within the purview of the clause is another question that I'm curious about.
      - freejazz 3y ago
        > I'm asking whether the laws which allow this are within scope of the US Constitution's clause on intellectual property rights. Which laws are those? I'm not sure why it wouldn't be in the scope of the constitutional grant of authority to congress. "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" The use of exclusive here makes perfect sense with how things worked then, and today. I think you are getting caught up in non-existent semantics. What would be the purpose of the clause if authors/inventors couldn't sell their work? what would be secured in the exclusive rights that benefits the furthering of arts and science if inventors and authors couldn't exploit their exclusive rights? I'm a copyright and patent litigator and I've never heard anyone make the argument you are making.
        anonymouskimmer 3y ago
        > What would be the purpose of the clause if authors/inventors couldn't sell their work? Not that they can't sell their work, but that they can transfer their exclusive rights in such a manner that they themselves can no longer exercise those rights. And laws which allow this are obviously, by definition of the words at the time, not "securing" those rights to the authors and inventors. You can't secure something to someone by allowing them to (both post-hoc and especially pre-hoc) permanently transfer those rights. Especially the pre-hoc transmission of rights as seen in various contracts (work for hire, etcetera) completely flouts the "securing" basis of the constitutional IP clause in that under no circumstances whatsoever did the rights ever belong to the author/inventor. The Constitution did not grant congress the authority to make laws allowing intellectual property protections to a pre-hoc transfer, but only possibly to transfer in which the author/inventor first had exclusive rights. Therefore any contracts which automatically assign any rights to any creations to another party the moment those creations are created cannot be covered by intellectual property protection laws created pursuant to Article 1, section 8, clause 8 powers, but must have some other constitutional basis (possibly under the commerce clause?). I guess you could get around this argument fairly easily by saying that the "limited time" is X number of years or until sold. But then I still don't understand under what authority the purchasing party gets these IP rights, as they are not the author or inventor, and thus not entitled to any securing of rights under this clause. If they do have rights it must be under either common law which pre-existed 1789, or under another section and clause of the Constitution, since this is not a 9th or 10th amendment issue. Congress can't just make law willy-nilly however it wants to, but must do so under one of its enumerated powers. I guess another way around this, and possibly the way it is done in IP law (you would know better than I), is that these rights aren't literally sold to another, but instead a permanent licensing contract is signed in which the author/inventor grants use of their exclusive rights to the licensee to do with however they wish. In this way the "exclusive rights" would still be secured to the author/inventor, though exercised by the other party. This seems like sophistry, but much of the law is.

freejazz 3y ago

It means the right is exclusively granted with them. I.e. no one besides the author gets to control the exclusive rights of a patent. By your logic, they can't even license it because "it's an exclusive right".

anonymouskimmer 3y ago
They control the license according to the terms of a license. But once a patent is sold the author of it no longer has any right to it. Authors and inventors are mentioned with the same language in the clause. Since it has always been true that authors can basically only profit from their writings by selling copies or originals of their works (without selling the right to the copyrighted material itself) then some form of licensing is necessarily included in the clause for both copyright and patents. There may have been journalists at the time who wrote works for newspapers owned by others. If so, this would be a reason to include the right of selling all of the rights to one's writings or inventions in the clause. I genuinely don't know if this was the case though.
- freejazz 3y ago
  Authors can license all of their rights away. They can sell their copyrights - I don't see your point...
  - anonymouskimmer 3y ago
    I'm asking whether the laws which allow this are within scope of the US Constitution's clause on intellectual property rights. There are plenty of laws which have been ruled unconstitutional. But it takes someone making the complaint to a court for this to happen. Otherwise the legislature does whatever it wants. Currently a majority of the US Supreme court thinks that the status quo at the time of the writing of the US Constitution or its amendments has bearing as to the meaning of those texts. Thus I mentioned back then authors sold copies of their works while retaining all other rights as indicating that "licensing" is within this clause. Whether or not total sales of the rights to the work is within the purview of the clause is another question that I'm curious about.
    - freejazz 3y ago
      > I'm asking whether the laws which allow this are within scope of the US Constitution's clause on intellectual property rights. Which laws are those? I'm not sure why it wouldn't be in the scope of the constitutional grant of authority to congress. "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" The use of exclusive here makes perfect sense with how things worked then, and today. I think you are getting caught up in non-existent semantics. What would be the purpose of the clause if authors/inventors couldn't sell their work? what would be secured in the exclusive rights that benefits the furthering of arts and science if inventors and authors couldn't exploit their exclusive rights? I'm a copyright and patent litigator and I've never heard anyone make the argument you are making.
      - anonymouskimmer 3y ago
        > What would be the purpose of the clause if authors/inventors couldn't sell their work? Not that they can't sell their work, but that they can transfer their exclusive rights in such a manner that they themselves can no longer exercise those rights. And laws which allow this are obviously, by definition of the words at the time, not "securing" those rights to the authors and inventors. You can't secure something to someone by allowing them to (both post-hoc and especially pre-hoc) permanently transfer those rights. Especially the pre-hoc transmission of rights as seen in various contracts (work for hire, etcetera) completely flouts the "securing" basis of the constitutional IP clause in that under no circumstances whatsoever did the rights ever belong to the author/inventor. The Constitution did not grant congress the authority to make laws allowing intellectual property protections to a pre-hoc transfer, but only possibly to transfer in which the author/inventor first had exclusive rights. Therefore any contracts which automatically assign any rights to any creations to another party the moment those creations are created cannot be covered by intellectual property protection laws created pursuant to Article 1, section 8, clause 8 powers, but must have some other constitutional basis (possibly under the commerce clause?). I guess you could get around this argument fairly easily by saying that the "limited time" is X number of years or until sold. But then I still don't understand under what authority the purchasing party gets these IP rights, as they are not the author or inventor, and thus not entitled to any securing of rights under this clause. If they do have rights it must be under either common law which pre-existed 1789, or under another section and clause of the Constitution, since this is not a 9th or 10th amendment issue. Congress can't just make law willy-nilly however it wants to, but must do so under one of its enumerated powers. I guess another way around this, and possibly the way it is done in IP law (you would know better than I), is that these rights aren't literally sold to another, but instead a permanent licensing contract is signed in which the author/inventor grants use of their exclusive rights to the licensee to do with however they wish. In this way the "exclusive rights" would still be secured to the author/inventor, though exercised by the other party. This seems like sophistry, but much of the law is.