Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
statute: the “Limited Times” requirement that forbidsCongress from conferring intellectual property rights ofperpetual duration. On its face, the protection created bythe anti-bootlegging statute is apparently perpetual andcontains no express time limit; therefore phonorecords oflive musical performances would presumably never fallinto the public domain. However, because Moghadamhas not challenged the constitutionality of § 2319A onthis basis, we decline to raise the issue sua sponte. Thus,we do not decide in this case whether extendingcopyright-like protection under the anti-bootleggingstatute might be fundamentally inconsistent with the“Limited Times” requirement of the Copyright Clause,and we do not decide in this case whether the CommerceClause can provide the source of Congressional power tosustain the application of the anti-bootlegging statute insome other case in which such an argument is preserved.We reserve those issues for another day. 94In Canada and Australia the issue of limited times is not assistedby express recognition of such a limit in the constitutionalmandate. However, upon further consideration of the matterthere could be little argument in Australia or Canada with theview that the granting of intellectual property rights is in someway limited by the reason for granting those rights.95 In fact, byway of tradition96 and under International law,97 there arelimits—statutory intellectual property rights (IPR) are generally94. Id. at 1281 (citations and footnote omitted).95. See Australian Trade Marks Act, 1995, §§17, 72, 75. Although some maysuggest statutory trademarks are of perpetual duration it is important to note they areusually only recognised where there is evidence of intended or actual use and areregistered for a period of ten years, which can be renewed.96. See Statute of Anne (1709) 8 Ann., c. 21 (Eng.); Statute of Monopolies, 1623,21 & 22 Jam. 1, c. 3 (Eng.); Millar v. Taylor, 98 Eng. Rep. 201, 231-32 (K.B. 1769).97. See Berne Convention for the Protection of Literary and Artistic Works (1971).International law can be used to assist in constitutional interpretation in Australia.See, e.g., Kartinyeri v. Commonwealth [1998] H.C.A. 22 (Austl.); “Applicant A” v.Minister for Immigration & Ethnic Affairs (1997) 142 A.L.R. 331 (Austl.); Kruger v.Commonwealth (1997) 146 A.L.R. 126 (Austl.); Newcrest Mining (WA) Ltd. v.Commonwealth (1997) 190 C.L.R. 513 (Austl.); Minister for Immigration & EthnicAffairs v. Teoh (1995) 183 C.L.R. 273 (Austl.); Horta v. Commonwealth (1994) 181 C.L.R.183 (Austl.); Bryan Horrigan & Brian F. Fitzgerald, International and TransnationalInfluences on Law and Policy Affecting Government, in Government Law and Policy § 1(Bryan Horrigan ed., 1998).
of a limited term and in certain circumstances subject to useswithout permission of the IPR owner—and based on the rationale(even if somewhat vague) that allowing monopoly rights ininformation benefits society as a whole through the creation ofvalue added informational products.98 Whether such a balance isachieved is a moot point.99 Vaver argues that “[i]f the rightsrestrict availability and use more than they increase them, theyare unjustifiable . . . .” 100In defining a patent, Judge Kirby in Grain Pool, Kirbyreferred to its limited nature. He explained:Upon this basis, the lawmaking power with respect to“patents of inventions” within s 51(xviii) involves theprovision by the state to the grantee of exclusive rightsfor a limited time to exploit, and to authorise otherpersons to exploit, a novel object or process of potentialbenefit to the community in respect of which a patent maybe granted and which is recorded in a public registerupon conditions of disclosure. This is the bedrock.Nothing more is required by the “really essentialcharacteristics” of “patents of inventions.”101While agreeing that the section 51 (xviii) head of powershould be read generously, Judge Kirby made it clear thatintellectual property rights should not be regarded as absolute;they must be constructed in the context of their proprietarypurpose. He explained “the protection of intellectual propertyrights must be afforded in a constitutional setting which upholdsother values of public good in a representative democracy.”102In contrast, by suggesting Article 1, Section 8, Clause 8 of theUnited States Constitution is narrower than section 51 (xviii) inthat it requires a purpose of promoting the progress of science andthe useful arts, the majority in Grain Pool appears to say that avariety of intellectual property rights (from low to highintellectual input) can be legislated under the section 51 (xviii)98. See Landes, supra note 12 (discussing the utilitarian/economic nature of suchthinking); see also Sony, 464 U.S. at 429-32; Vaver, supra note 19, at 87-96 (noting therelevance of moral rights in Canadian copyright law).99. See Vaver, supra note 19, at 6-8.100. Id. at 8.101. Grain Pool, [2000] H.C.A. 14 at para. 135 (emphasis added).102. Id. at n.218.
- Page 36 and 37: management information, including c
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statute: the “Limited Times” requirement that forbidsCongress from conferring intellectual property rights <strong>of</strong>perpetual duration. On its face, the protection created bythe anti-bootlegging statute is apparently perpetual andcontains no express time limit; therefore phonorecords <strong>of</strong>live musical performances would presumably never fallinto the public domain. However, because Moghadamhas not challenged the constitutionality <strong>of</strong> § 2319A onthis basis, we decline to raise the issue sua sponte. Thus,we do not decide in this case whether extendingcopyright-like protection under the anti-bootleggingstatute might be fundamentally inconsistent with the“Limited Times” requirement <strong>of</strong> the Copyright Clause,and we do not decide in this case whether the CommerceClause can provide the source <strong>of</strong> Congressional power tosustain the application <strong>of</strong> the anti-bootlegging statute insome other case in which such an argument is preserved.We reserve those issues for another day. 94In Canada and Australia the issue <strong>of</strong> limited times is not assistedby express recognition <strong>of</strong> such a limit in the constitutionalmandate. However, upon further consideration <strong>of</strong> the matterthere could be little argument in Australia or Canada with theview that the granting <strong>of</strong> intellectual property rights is in someway limited by the reason for granting those rights.95 In fact, byway <strong>of</strong> tradition96 and under International law,97 there arelimits—statutory intellectual property rights (IPR) are generally94. Id. at 1281 (citations and footnote omitted).95. See Australian Trade Marks Act, 1995, §§17, 72, 75. Although some maysuggest statutory trademarks are <strong>of</strong> perpetual duration it is important to note they areusually only recognised where there is evidence <strong>of</strong> intended or actual use and areregistered for a period <strong>of</strong> ten years, which can be renewed.96. See Statute <strong>of</strong> Anne (1709) 8 Ann., c. 21 (Eng.); Statute <strong>of</strong> Monopolies, 1623,21 & 22 Jam. 1, c. 3 (Eng.); Millar v. Taylor, 98 Eng. Rep. 201, 231-32 (K.B. 1769).97. See Berne Convention for the Protection <strong>of</strong> Literary and Artistic Works (1971).International law can be used to assist in constitutional interpretation in Australia.See, e.g., Kartinyeri v. Commonwealth [1998] H.C.A. 22 (Austl.); “Applicant A” v.Minister for Immigration & Ethnic Affairs (1997) 142 A.L.R. 331 (Austl.); Kruger v.Commonwealth (1997) 146 A.L.R. 126 (Austl.); Newcrest Mining (WA) Ltd. v.Commonwealth (1997) 190 C.L.R. 513 (Austl.); Minister for Immigration & EthnicAffairs v. Teoh (1995) 183 C.L.R. 273 (Austl.); Horta v. Commonwealth (1994) 181 C.L.R.183 (Austl.); Bryan Horrigan & Brian F. Fitzgerald, International and TransnationalInfluences on <strong>Law</strong> and Policy Affecting Government, in Government <strong>Law</strong> and Policy § 1(Bryan Horrigan ed., 1998).
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