A new look at the constitution's copyright clause: Copyright by government contractors is unconstitutional |
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| Institution: | 1. Department of Natural Products, National Institute of Pharmaceutical Education and Research (NIPER), Sector-67, S.A.S Nagar, Punjab 160062, India;2. Department of Virology, National AIDS Research Institute (NARI), 73 G Block, MIDC, Bhosari, Pune, Maharashtra 411026, India;1. Department of Earth and Planetary Sciences, University of California, Riverside, CA 92521, USA;2. Department of Geoscience, Environment and Society, Université Libre de Bruxelles, Brussels, Belgium;3. Operational Directorate Natural Environment, Royal Belgian Institute of Natural Sciences, Brussels, Belgium;4. Department of Earth Sciences, University of Toronto, Toronto, Ontario M5S 3B1, Canada;5. Department of Atmospheric and Oceanic Sciences, University of California, Los Angeles, CA 90095, USA;6. Department of Earth, Planetary, and Space Sciences, University of California, Los Angeles, CA 90095, USA;7. Department of Earth Sciences, University of Southern California, Los Angeles, CA 90089, U.S.A;8. Environmental Molecular Sciences Laboratory, Pacific Northwest National Laboratory, Richland, WA 99354, USA;9. Boone Pickens School of Geology, Oklahoma State University, Stillwater, OK 74078, USA;1. Department of Chemistry and Biochemistry, University of Oklahoma, Norman, OK, United States;2. Department of Biochemistry and Microbiology, Oklahoma State University Center for Health Sciences, Tulsa, OK, United States;1. National Human Genome Research Institute, National Institutes of Health, Bethesda, MD;2. Department of Pediatrics, Vanderbilt University Medical Center, Nashville, TN;3. Department of Biomedical Informatics, Vanderbilt University Medical Center, Nashville, TN;1. Grantham Research Institute for Climate Change and the Environment, London School of Economics and Political Science, Houghton Street, London WC2A 2AE, UK;2. Department of Economics, University of Hawai''i at Mānoa, 2424 Maile Way, Saunders Hall 542, Honolulu, HI 96822, Hawaii, United States |
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| Abstract: | Through a new interpretation of the Copyright Clause of the Constitution and the Application of the Ninth and Tenth Amendments, the author concludes that it is unconstitutional for (1) the Congress to authorize Federal agencies to permit copyright by Federal contractors on works they were commissioned by Federal contract to produce for compensation, and (2) the Copyright Office to register a copyright application from such a Federal contractor.There are two provisions in the Copyright Clause, the commonly cited one on promoting science and the arts, and the generally ignored permissible-means provision limiting copyright to providing incentive to authors to create works. The latter one is a threshold requirement for copyrightability.Since there is no constitutional authority to motivate an author by the Federal Government's permitting him to copyright a work he was commissioned under Federal contracts to produce for compensation, Schnapper v. Foley was wrongly decided. |
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