If all we did was to give a single author or pioneering scientist strong incentives to create one breakthrough work or invention, the promotion of that small sliver of progress could hardly justify the Constitutional status and societal importance of the Intellectual Property Clause.

Intellectual Property is not merely about giving incentive by grant of monopoly, it is also about stirring and supporting the next generation of works and invention, so that those who follow can not only devise their own pioneering works, but also to build incrementally but fundamentally on the works of those who have come before.

The IP Clause recognizes this, in one way, by a Congressional injunction to grant monopoly rights only “for limited Times.” After some period of time, no matter how seminal the work, no matter how valuable and earth-shattering the new invention — every single aspect of monopoly protection associated with the protection of Copyright and Patent evaporates and is dedicated to the public domain, for use and appropriation by those who follow.

Of course, notwithstanding that wisdom of the Founding Fathers, neither the Congress nor the Supreme Court seem to be willing to treat the inunction as a meaningful constraint, having serially extended the terms of copyrights every few decades at the request of the content industries, so that no works at all have fallen into the public domain in the lifetime of many readers of these words.

What has kept the juices of authors flowing is, in part, a never-ending stream of truly pioneering innovation and insight, but also the fact that IP, such as Copyright, is clearly limited in various ways. This will be covered elsewhere in greater detail, but I note that Copyright is not only limited in time, but also in scope of subject matter (excluding ideas, as opposed to expression) and in scope of protection (excluding protection of well-established themes —or scenes a faire—, protection against fair use, and protection after exhaustion of rights by first sale) and reach of protection (with respect to who may be sued, for what, and what remedies shall be granted). Likewise, Patents are limited, not only in time, but also in scope of subject matter and protection.

The limitations are necessary to the promotion of progress, although it is not obviously why at first blush. Why not give a pioneering inventor or breakthrough playright total control of every aspect of their invention? It is because there really is no such thing as a truly pioneering invention. Nothing truly comes out of a vacuum. Every work of authorship, every invention arises from works of those who have gone before. We all owe greatly to those who have gone before.

And the pioneers are neither necessary nor sufficient for the contributions to society achieved by their works. Invention is not the same as innovation, and neither translate to greatness. The story of technology and innovation is that of incremental improvement perfecting and making practical, and sometimes even useful, the pioneering works. While the improvements may seem modest in terms of measuring how much was created, they are no less inventive or important in practice. Indeed, sometimes the monopoly granted to a pioneer, improperly managed, can be a drag on the improvements necessary to promote the progress of the useful Arts.

The Wright flying machine, by itself, would not have been enough to change life as has the airplane. It is the works of those who followed that made the airplane, and then the airline a practical reality. Of course, distinguishing between genuine incremental invention and mere free-riding of original works is at times a subtle point, but there is no doubt that a patent or copyright monopoly, if too strong, can ultimately squash, rather than promote progress. And the reasons for this are simple and as old as our society itself.