Vol 7 No 1 - Roger Williams University School of Law

More documents

Recommendations

Info

the process through which digital property is being constructed.2It aims to highlight through select and recent cases theconstitutional, legislative, contractual and technologicaldimensions of digital property.3I. THE CONSTITUTIONAL MANDATE: THE ENUMERATED INTELLECTUALPROPERTY (IP) POWERIn Australia, Canada and the United States of America, thefederal or national legislature is given significant power in theirrespective federating Constitutions to enact laws with respect tointellectual property. While not all “digital property” comeswithin the constitutional definition of intellectual property4 (asyou will see below), these constitutional sources of the key type ofinformation property, namely, intellectual property (IP), are anobvious and necessary place to begin this analysis. Theconstitutional provisions are expressed as follows:AustraliaSection 51 (xviii) of the Constitution provides that theCommonwealth Parliament may make laws for the peace, orderand good government of the Commonwealth with respect to:“Copyrights, patents of inventions and designs, and trade marks.”CanadaPursuant to sections 91 (22) and 91 (23) of the ConstitutionAct, 1867 the Canadian Parliament has exclusive power tolegislate in respect of “Patents of Invention and Discovery” and2. See also Brian F. Fitzgerald, A Legal Framework for UnderstandingInformational Property Entitlements in the Digital Environment, athttp://www.innovationlaw.org/lawforum/pages/lectureseries.htm (last visited Oct. 20,2001).3. Brian F. Fitzgerald, Intellectual Capital and Law in the Digital Environment,Ivey Bus. J., Mar.-Apr. 2001, at 22.4. See generally Agreement on Trade-Related Aspects of Intellectual PropertyRights, Apr. 15, 1994, Marrakesh Agreement Establishing the World TradeOrganization, Annex 1C, Legal Instruments – Results of the Uruguay Round vol. 31, 33I.L.M. 81 (1994) [hereinafter TRIPS] (defining intellectual property rights). A largeamount of intellectual property legislation is derived from internationalconventions/treaties, with the TRIPS agreement being a current and concise summaryof those international principles.
“Copyrights.” Trademarks are covered by the trade and commercepower.5United StatesArticle I, section 8, clause 8 of the United States Constitutionempowers the Congress to legislate: “To promote the Progress ofScience and useful Arts, by securing for limited Times to Authorsand Inventors the exclusive Right to their respective Writings andDiscoveries.” Trademarks are covered by the Commerce Clause.6Immediately upon reading these provisions one is drawn tocomment that the U.S. provision is written in a more flowery andprosaic language, perhaps representing the style of constitutionaldrafting of an earlier era or one consequent to a revolution. TheU.S. provision appears to be much more explicitly guided by apurpose for granting intellectual property rights—to promote theprogress of science and the useful arts by securing exclusive rightsfor limited times—than are the Australian or Canadianprovisions. The crucial issue that has arisen in relation to thesesources or fonts of intellectual property is the extent to which theyempower governments to propertize information. Are there anylimits? Is it possible to create rights in information that last inperpetuity? Different types of limits are asserted, such as:the purpose for which the IP right is granted/publicdomain user rights;type of information that the constitution will allow to bepropertized;length of time a property right will endure;medium in which the information exists, e.g., fixed in atangible form.The follow up question that has arisen is whether theselimits, if they exist, may be undermined or overridden by otherconstitutional clauses bestowing legislative power at the federallevel or by state laws.7 For example, can the Commerce Clause in5. See McDonald v. Vapor Can. Ltd., [1977] 2 S.C.R. 134 (Can.).6. The Trade-Mark Cases, 100 U.S. 82, 93-95 (1879).7. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989);
Page 3:
ROGER WILLIAMS UNIVERSITYLAW REVIEW
Page 7 and 8: ROGER WILLIAMS UNIVERSITYSCHOOL OF
Page 9: Identification StatementThe Roger W
Page 12 and 13: contract exclusion or disclaimer of
Page 14 and 15: and other laws of countries in whic
Page 16 and 17: Symposium and writes on this issue
Page 18 and 19: Indeed, the quotation contains the
Page 20 and 21: suggestive of a bill designed merel
Page 22 and 23: United States ought to adopt in lig
Page 24 and 25: the Supreme Court to reiterate in F
Page 26 and 27: United States Supreme Court quoted
Page 28 and 29: copying of “a work protected unde
Page 30 and 31: shall be null and void.65 Member st
Page 32 and 33: determining the fate of database pr
Page 34 and 35: The compilation of a database requi
Page 36 and 37: management information, including c
Page 38 and 39: one congressional witness noted:
Page 40 and 41: that were made after the initial te
Page 42 and 43: preferred language of many business
Page 44 and 45: the sui generis right mainly serves
Page 46 and 47: the Paris Convention for the Protec
Page 48 and 49: directly or indirectly.159 In other
Page 50 and 51: of resources that qualifies that po
Page 52 and 53: wish to encourage private lawsuits,
Page 54 and 55: contract.”185 While section 1405(
Page 56 and 57: The Directive will inevitably drive
Page 60 and 61: the United States or the trade and
Page 62 and 63: patent law is the utilitarian ethic
Page 64 and 65: a work to be publicly identified as
Page 66 and 67: the United States, the power of the
Page 68 and 69: Theory one proposes to reward the a
Page 70 and 71: of intellectual property rights mus
Page 72 and 73: only such as are original, and are
Page 74 and 75: emedies set forth in section 1406.T
Page 76 and 77: eproduced, though there be no ingen
Page 78 and 79: the same, or substantially the same
Page 80 and 81: with respect to “patents of inven
Page 82 and 83: Because, in part of the joint reaso
Page 84 and 85: even by the plaintiffs today.86The
Page 86 and 87: statute: the “Limited Times” re
Page 88 and 89: head of power. It is not clear whet
Page 90 and 91: elationship of power between the Co
Page 92 and 93: history dealing with either provisi
Page 94 and 95: the parameters of the propertizatio
Page 96 and 97: the legislative power contained in
Page 98 and 99: negative pregnant that suggests tha
Page 100 and 101: scope of the Commerce Clause in the
Page 102 and 103: gave incentive for people to expres
Page 104 and 105: ejected this purported distinction
Page 106 and 107: talk, communicate or consume inform
Page 108 and 109:
frameworks that will allow diversit
Page 110 and 111:
that a monopolist should not seek t
Page 112 and 113:
motivating force.While antitrust or
Page 114 and 115:
unjustifiable anti-competitive cond
Page 116 and 117:
his refusal to sell or license his
Page 118 and 119:
defense and exploitation of the cop
Page 120 and 121:
the information age there have been
Page 122 and 123:
In response to Intel’s argument t
Page 124 and 125:
Court of First Instance in concludi
Page 126 and 127:
to oust competitors, there was noth
Page 128 and 129:
as a digital property owner, which
Page 130 and 131:
anti-competitive use of monopoly po
Page 132 and 133:
certain circumstances, exempted fro
Page 134 and 135:
for circumventing a technological p
Page 136 and 137:
DMCA creates an exclusive right in
Page 138 and 139:
circumventing a TPM in order to loo
Page 140 and 141:
“staple article of commerce” do
Page 142 and 143:
commerce.”320 Is innovation stifl
Page 144 and 145:
anner advertisement company DoubleC
Page 146 and 147:
the subject. Demographic informatio
Page 148 and 149:
important to know whether a contrac
Page 150 and 151:
information rights and legislated c
Page 152 and 153:
this value is difficult to apportio
Page 154 and 155:
Association (WIPO) will administer
Page 156 and 157:
the new environment.For example, th
Page 158 and 159:
implemented. As this section will h
Page 160 and 161:
ight. First sale is an important di
Page 162 and 163:
sign a hard copy contract containin
Page 164 and 165:
to digital property. As well, free
Page 166 and 167:
desirable to sellers and buyers ali
Page 168 and 169:
ural and remote areas, where access
Page 170 and 171:
as “high-speed telecommunications
Page 172 and 173:
decrease innovation.30 On the other
Page 174 and 175:
could be called a trespass, since a
Page 176 and 177:
inform what permissible access and
Page 178 and 179:
Universal Music Group uses software
Page 180 and 181:
Taking UCITA on the Road: WhatLesso
Page 182 and 183:
the debate has centered on whether
Page 184 and 185:
It is against this background that
Page 186 and 187:
similarities as well as differences
Page 188 and 189:
as well, such as the American Bar A
Page 190 and 191:
American Law Institute refused to p
Page 192 and 193:
enactment of the draft. This led to
Page 194 and 195:
such application.35 To the extent,
Page 196 and 197:
transactions involving goods other
Page 198 and 199:
quite controversial.49 As the histo
Page 200 and 201:
provisions of Article 2 (based in p
Page 202 and 203:
form license of information.63 Alth
Page 204 and 205:
principles articulated in several i
Page 206 and 207:
to by industry groups, with the res
Page 208 and 209:
powers going well beyond the UNIDRO
Page 210 and 211:
Contracts deals with unfair terms i
Page 212 and 213:
worth a thousand words. Picture a d
Page 214 and 215:
types of provisions being sought by
Page 216 and 217:
law is a complex one.125 Although s
Page 218 and 219:
the intellectual property balance o
Page 220 and 221:
Other Substantive IssuesThere are,
Page 222 and 223:
law,153 and many of UCITA’s provi
Page 224 and 225:
nature of law-making both domestica
Page 226 and 227:
Transactions Act).
Page 228 and 229:
acts of copyright infringement.7 Un
Page 230 and 231:
these rights.I. ISP LIABILITY FOR T
Page 232 and 233:
Cubby, the court in Stratton Oakmon
Page 234 and 235:
liability for third-party content.5
Page 236 and 237:
network and removed the edition of
Page 238 and 239:
subscribers’ conversations.84 Fur
Page 240 and 241:
holder.92 Contributory liability ap
Page 242 and 243:
and Klemesrud on the counts of dire
Page 244 and 245:
eport, the White Paper on Intellect
Page 246 and 247:
imposed ISP liability both in insta
Page 248 and 249:
any infringing material either upon
Page 250 and 251:
provider liability, the European Co
Page 252 and 253:
of a defamatory statement.While saf
Page 254 and 255:
defamation.184 One case that illust
Page 256 and 257:
material that appears questionable
Page 258 and 259:
FBI’s Carnivore: Is the Governmen
Page 260 and 261:
and the legal limits of government
Page 262 and 263:
II. CONSTITUTIONAL ANALYSISA. Const
Page 264 and 265:
application developed in Katz v. Un
Page 266 and 267:
Amendment protections.50Substantial
Page 268 and 269:
communicating over the Internet pos
Page 270 and 271:
court will likely, as it has often
Page 272 and 273:
unconstitutional.81 Although CALEA
Page 274 and 275:
data attributable to the target sus
Page 276 and 277:
FBI facility for subsequent examina
Page 278 and 279:
EPCA Section 2518 provides that upo
Page 280 and 281:
The FBI has stated that its use of
Page 282 and 283:
provision,143 but judging from the
show all

Vol 7 No 1 - Roger Williams University School of Law

Create successful ePaper yourself

Delete template?

Save as template?