Ned Snow

Volume 74, Issue 4, 1121-1166

The Constitution provides Congress the power to enact copyright laws in order “To promote the Progress of Science.” Some statements by the modern Supreme Court may be interpreted to suggest that “the Progress of Science” is synonymous with creativity, and most scholars articulate the purpose of copyright law in terms of encouraging creative expressions. This is troubling, however, because not all creative expressions yield public knowledge; indeed, some yield public harm. For example, false statements of fact that are made to purposefully deceive are highly creative, but those statements inhibit the spread of knowledge and may lead to demonstrably harmful outcomes. Therefore, creativity does not always promote the progress of science.

This Article argues that the Copyright Clause’s reference to the progress of science imposes a public-harm boundary on the type of creativity that copyright should encourage. As support for this argument, the Article relies on the plain meanings of “Progress” and “Science,” past judicial interpretation of the Clause, copyright theory, and public-value themes in other intellectual property doctrines. The Article proposes that courts should deny copyright protection for expressions that are unlawful or, in other words, those that fall outside of First Amendment protection. It further contemplates that Congress might deny protection for some limited categories of expression that receive First Amendment protection. Finally, this Article responds to a counterargument that is based on free speech principles. The Article concludes that although creativity is essential to realizing the progress of science, the progress of science should once again require that creative works not be harmful to the public.