Vol 7 No 1 - Roger Williams University School of Law

emains whether any purpose or rationale for such rights acts as alimit on what rights can be legislated?There is sufficient United States Supreme Courtjurisprudence to suggest that copyright or patent legislationshould stimulate economic efficiency. But in light of the recentdecision in Eldred v. Reno,37 it might be doubted whether aUnited States court would use this as the basis for any generaldecision limiting the power of Congress to legislate. If anything,such a rationale for the IP clause would most likely beimplemented through interpretation of the various elements of theclause. Notions of personhood38 or cultural enhancement do notseem to be constitutionally required or entrenched. However, thefollowing statement from Graham v. John Deere Co,39 read at itsbroadest, suggests that there may be a broader purposive limitwhich, with some imagination, could embrace notions of socialimpact:The Congress in the exercise of the patent power may notoverreach the restraints imposed by the stated constitutionalpurpose. Nor may it enlarge the patent monopoly without regardto the innovation, advancement or social benefit gained thereby.40In Australia and Canada it is doubtful whether any generallimit based on notions of economy, personhood or culture would beoperational. Once again, if any limits exist they must be found inthe specific elements of the respective constitutional clauses.Although, the recent statement by Justice Kirby of the High Courtof Australia in Grain Pool of WA v. The Commonwealth41 suggestsdemocratic and cultural considerations may be relevant tointerpreting the scope of legislative power on this issue:No absolute or unlimited rule may be stated. The protection37. 239 F.3d 372 (D.C. Cir. 2001). In Eldred, the majority held that theperambulatory words of the United States Copyright and Patent Clause—to promoteprogress of science and the useful arts—are not to be read as limits on the legislativepower of Congress. This suggests that the purpose for bestowing the legislative powerbecomes relevant if at all in relation to the operative parts or terms of the clause.38. See Gilliam v. ABC Inc., 538 F.2d 14 (2d Cir. 1976). These issues can berelevant if related to the economic incentive argument.39. 383 U.S. 1, 5-6 (1966).40. Id.; see also Sears, Roebuck & Co., 376 U.S., at 230 (quoting Kendall v.Winsor, 21 How. 322, 328 (1859)) (“[I]n rewarding useful invention, the ‘rights andwelfare of the community must be fairly dealt with and effectually guarded.’”).41. [2000] H.C.A. 14, available athttp://www.austlii.edu.au/au/cases/cth/high_ct/2000/14.html.