Law Commons^™

Promoting Progress With Fair Use, Joshua N. Mitchell

Duke Law Journal

The Intellectual Property (IP) Clause provides that Congress has the power "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." In the realm of copyright, Congress and the courts have interpreted the clause as granting Congress a power not to promote progress but to establish limited IP monopolies. To return to an understanding of the IP power better grounded in the constitutional text, Congress and the courts should ensure that any IP enactment "promote[s] ... Progress" by considering whether it improves the …