Vol 7 No 1 - Roger Williams University School of Law

the United States or the trade and commerce clause in Australiabe used to legislate informational property rights that surpass anyconstitutional limits inherent in the respective IP clauses?8 Orwill the IP clause be read like the unjust acquisition (or takings)clause of the Australian Constitution so as to limit the otherenumerated federal legislative powers?9A. The Rationale and Purpose of IP Rights—The Scope of thePublic DomainA preliminary question and one that is central to the debateover propertizing information is the role and purpose ofintellectual property law or, if looked at from another perspective,the scope of public domain rights.10 Fisher explains that there areKewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974); Goldstein v. California, 412 U.S.546 (1973); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964); Sears,Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964).8. See Brian F. Fitzgerald, (Australian) Constitutional Limits on IntellectualProperty, 23 Eur. Intell. Prop. Rev. 103 (2001).9. See Austl. Const. ch. I, pt. V, § 51, cl. xxxi. The Australian Constitution,amongst other things, divides the legislative powers of the Australian federal systembetween the Commonwealth (central) and State (regional) governments. Section 51 ofthe Constitution provides that the Commonwealth Parliament shall have power tomake laws for the peace, order, and good government of the Commonwealth withrespect to an enumerated list of powers. As a general rule the empowering clauses ofsection 51 are seen as independent sources for legislative action, although section 51(xxxi) is a clear exception to that rule. Section 51 (xxxi) confers a power on theCommonwealth Parliament to legislate with respect to “the acquisition of property onjust terms from any State or person for any purpose in respect of which the Parliamenthas power to make laws.” The provision operates, firstly, to give the Commonwealthpower to acquire property and, secondly, as an individual right or guarantee to privateproperty protected by “just terms.” See Georgiadis v. AOTC (1994) 179 C.L.R. 297(Austl.); Mutual Pools & Staff Ltd. v. Commonwealth (1994) 179 C.L.R. 155 (Austl.). Inacting as a guarantee, the clause is said to remove from other clauses the power tocompulsorily acquire property. However, if another clause in section 51 displays, bywords or content, an intention to allow acquisition without just terms or if theacquisition is of a type that is not susceptible to just terms, the guarantee is notoperative. Therefore statutes imposing taxation, penalties by way of forfeiture ofproperty or a bankruptcy scheme are not seen as infringing the guarantee of or right toprivate property protected by section 51 (xxxi). See Mutual Pools, 179 C.L.R. at 169-71,177-81, 186-89, 219-22; see also Health Insurance Commission v. Peverill (1994) 179C.L.R. 226 (Austl.); Newcrest Mining (WA) Ltd. v. Commonwealth (1997) 190 C.L.R.513 (Austl.).10. See generally Yocahi Benkler, Free as the Air to Common Use: FirstAmendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354(1999) (including in the definition of the public domain works protected by copyrightbut that may be used without the permission of the copyright owner under privilegessuch as the fair use doctrine); Jessica Litman, The Public Domain, 39 Emory L.J. 965