Vol 7 No 1 - Roger Williams University School of Law

commerce.”320 Is innovation stifled by this decision or was thissimply a clear case of copying facilitated by a knowingintermediary? Should the digital property owner be able tocontrol innovation in technology that may represent a risk to thevalue of that property? So far, in the context of the new digitaltechnologies, the answer from the courts is likely to be “yes.”In light of the foregoing discussion it can be seen that fair useis an extremely important variable in the definition of digitalproperty and will be raised in many instances, with varyingdegrees of success.C. Privacy LawThe notion of privacy means at very least the right to controlpersonal information/informational self-determination.321 Thisright has long been recognised in international law.322 Privacy ordata protection law promises to be a key determinant ofinformational property in the digital age.While use of private information by government and publicbodies has been regulated in the United States, Canada andAustralia during the last twenty years, the flow of data in theprivate sector has been subject to very little legal constraint. In1995, the European Union, in response to concerns over theinvasive nature of the Internet and its tremendous capacity totrace and profile individual identity, promulgated the EuropeanDirective on Data Protection.323 In short, the Directive requiresmember states to enact legislation covering the processing of datacollection in the private sector.324 The purpose for which theinformation was gathered must be disclosed at the point of receipt,320. Sony, 464 U.S. at 441.321. See Lee A. Bygrave & Kamiel J. Koelman, Privacy, Data Protection andCopyright: Their Interaction in the Context of Electronic Copyright ManagementSystems, in Copyright and Electronic Commerce: Legal Aspects of Electronic CopyrightManagement 59, 64-65 (P. Bernt Hugenholtz ed., 2000); see also Moore v. Regents ofthe University of California, 793 P.2d 479 (Cal. 1990); Restatement (Second) of Torts §652 (1977); Julie E. Cohen, Examined Lives: Informational Privacy and the Subject asObject, 52 Stan. L. Rev. 1373 (2000); Charles Fried, Privacy, 77 Yale L.J. 475 (1968);William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960); Eugene Volokh, Freedom ofSpeech and Information Privacy: The Troubling Implications of a Right to Stop PeopleFrom Speaking About You, 52 Stan. L. Rev. 1049 (2000); Samuel D. Warren & Louis D.Brandies, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).322. Universal Declaration of Human Rights, supra note 15, at art. 12.323. Council Directive 1/95, 1995 O.J. (C 93) 1.324. Id.