Vol 7 No 1 - Roger Williams University School of Law

of intellectual property rights must be afforded in a constitutionalsetting which upholds other values of public good in arepresentative democracy. In the United States the relevant headof constitutional power has been viewed as containing in-builtlimitations many of which are derived from the competingconstitutional objective of public access to information: Graham v.John Deere Co.; Feist Publications, Inc v. Rural Telephone ServiceCo., Inc. In Australia, the constitutional setting is different butthe existence of competing constitutional objectives, express andimplied, is undoubted.42Having considered the difficulty courts have with invoking abroad notion of purpose for granting IP rights as an enforceablerestraint on legislation, the more interesting question is todetermine the specific limits that arise from the elements of theclauses.B. The Type of Information That the Constitution Will Allow to bePropertizedCentral to the presentation of digitised information issoftware. Software has been protected as a literary work underthe US Copyright Act since 1980 and under the AustralianCopyright Act since 1984. Article 10 (1) of the TRIPs agreementalso provides that software shall be protected as a literary text incopyright law.43 More recently, software has been subject to avast amount of patenting throughout the world.44 It is clear thenthat the most prominent form of digital property has been held tobe a type of information that can be subject to IP rights. However,not all information, including digitised information, isconstitutionally eligible for protection under the copyright andpatent heads of power.1. Raw DataThe classic example of unprotected information is raw data or42. Id., at n.218 (citations omitted). Judge Kirby also talks of “potential benefit tothe community.”; see also Lawrence Lessig, Code and Other Laws of Cyberspace 131,133-34 (Basic Books 1999); Fitzgerald, supra note 8.43. TRIPS, supra note 5, at art. 10 cl. 2 (providing that “Computer programs,whether in source or object code, shall be protected as literary works under the BerneConvention (1971)”).44. See, e.g., State St. Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F. 3d.1368 (Fed. Cir. 1998); Welcome Real-Time, [2001] F.C.A. 445.