Vol 7 No 1 - Roger Williams University School of Law

scope of the Commerce Clause in the face of the IP clause hasmerit and legal precedent to support it, an over-zealousimplementation of such a principle could mortify constitutionalinterpretation, stifle incentive to create and ensuing innovationand retard thinking about new forms of digital property.In Australia, a similar question concerning the commerceclause and IP clause could arise although the specificrequirements of the U.S. clause are not explicit and possibly notimplicit in the Australian clause. This is nevertheless a dormantissue that needs to be considered when legislating in this area.149In summary, note that specific limits inherent in the IP clausemay be asserted in constitutional litigation. The law in light ofMoghadam appears to suggest that specific limits pertaining tothe IP clause will limit the Commerce Clause in certain cases andthat this might be an obstacle for any sui generis database law inthe United States.II. THE CONSTITUTIONAL IMPERATIVE: FREE SPEECH, ACCESS TOINFORMATION AND DEMOCRATIC PRINCIPLEThe second dimension of traditional constitutional principlethat promises to define, if not influence, the boundary of digitalproperty is that of free speech: constitutionally and expresslyenshrined in the United States First Amendment, and Article 2 ofthe Canadian Charter of Rights150 and, existing to a limited andimplied degree, in the context of political speech in Australia.151As to this point, the First Amendment to the United StatesConstitution, which has been vigorously asserted in recent timesby advocates fearful of growing intellectual property rights, hasnot been considered by the courts to be of overriding concern.This is not to say that free speech considerations have notinfluenced the development and implementation of intellectualproperty law. The notion of free speech is implicated in thedefinition or construction of digital property because we usecopyrighted/patented/trademarked items in the process of149. See Australian Tape Mfrs. v. Commonwealth of Australia (1993) 176 C.L.R. 480(Austl.) (while the general rule is that each head of legislative power stands alone, theHigh Court has interpreted section 51 (xxxi) of the Australian Constitution (theAustralian version of the U.S. Takings Clause) as both a grant of power and alimitation on other powers in certain circumstances).150. See Fewer, supra note 19, at 226-39.151. See Lange v. Australian Broadcasting Corp. (1997) 145 A.L.R. 96 (Austl.).