A new look at the constitution's copyright clause: Copyright by government contractors is unconstitutional

Abstract

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.