A Unitary Progress Clause
Open AccessSince around 1950, the Progress Clause of the Constitution has been read in a distributive manner. That is to say, it is read as granting two separate powers: the power to promote the progress of science through copyright, and the power to promote the progress of useful arts through patent. This dichotomy has led to some confusion in certain subject matter areas that span the two regimes, like architectural works, computer programs, and design patents. In addition, because the distributive reading effectively separates copyright and patent, this reading may undermine certain doctrines, such as copyright's secondary liability doctrine or the copyright misuse doctrine, that have evolved based on the presumed relationship between the regimes. Rather than a distributed power, I suggest that the Progress Clause should be read as a unified power intended to promote the progress of science and useful arts. I arrive at this conclusion by applying two mechanisms of constitutional interpretation. First, I observe that the purely historical basis for the current reading does not convincingly support the distributive reading, but it is in fact very ambiguous. I argue that this ambiguity supports the unitary reading. Second, I suggest that the Supreme Court's recent analysis of the Second Amendment conclusively requires a unitary reading for the Progress Clause based on the structural similarities of the two constitutional provisions. The unitary reading presents a more cohesive view of intellectual property law. It removes the foundations of criticism for mongrel subject matter and legitimizes the application of patent doctrine to copyright law. Importantly, it also helps clarify murky questions in patent law like subject matter eligibility.
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