Sebastian Quiroga (Yale University – Law School) has posted The Exclusive Right (University of Pennsylvania Journal of Constitutional Law (forthcoming 2026)) on SSRN. Here is the abstract:
The Constitution’s Article I provision securing copyrights and patents to authors and inventors does so as an “exclusive right.” The Constitution only once describes a right belonging to We the People as “exclusive.” I undertake the first historical tracing of the phrase “exclusive right” and show that, at the Framing, the Constitution rebuttably presumed a right to enjoin infringers in copyright and patent suits. As the plain text implies and history confirms, “the exclusive right” in our Constitution imparted a correlative right of exclusion akin to that of staying waste on real property. This history has become muddled because of modern imposition of the phrase “exclusive right” onto older cases and statutes. I show that the phrase “exclusive right” emerged from Locke and marked a shift away from viewing copyright as a discretionary privilege given by the king, to an individual right of authors owed to them as a product of their labor of creation. Reflecting this change, “exclusive right” was taken up by the Chancery to justify permanent injunctions protecting written works. The phrase most prominently entered the American consciousness through Blackstone’s Commentaries and was first widely used on the continent by the Confederation Congress in 1783. It was then memorialized in our Constitution and explained in The Federalist as a right derived from English common law. The Constitution’s Framers justified extending the English right of authorship to one of inventorship by channeling Blackstone, who argued landmark copyright cases at the King’s Bench and rooted copyright in the Chancery’s frequent injunctions. Despite all this, the Supreme Court in eBay v. MercExchange made no mention of the Constitution in finding that patent holders do not have a presumptive right to enjoin infringers. But the Constitution’s text, history, and structure all gesture to the same end—that “the exclusive right” in the Copyright and Patent Clause carried with it a presumptive right to enjoin.
Interesting and recommended.