Vol 7 No 1 - Roger Williams University School of Law

interest of the property holder.107 Likewise, Judge Kirby’sapproach challenges us to conceptualise a more principledconstruct of intellectual property in accordance with the notionthat “no right is absolute.”108 Are we to expect from suchreasoning a view that demands (in a constitutional sense) thatintellectual property rights must yield to the public domain wherenecessary? And will such reasoning support the notion that asintellectual property rights have had and still do have limitedterms (based on a mixture of economic utility and the democraticand social value of the public domain),109 the constitutional powerto create such rights is subject to limits, specifically, arequirement that intellectual property rights be granted forlimited terms?110 Further, will we see arguments suggesting thatthere is a constitutional guarantee to the public domain?111The Grain Pool case raises interesting questions concerningintellectual property and constitutional principle for theinformation age. It shows the willingness of the High Court ofAustralia to allow the Commonwealth or Federal Parliament tolegislate on issues of intellectual product and gives insight intothe variable definition of the term “patents of invention.” On thisplane, the High Court is clearly saying that, in terms of thefederal division of legislative powers, the CommonwealthParliament has a broad power to legislate on matters relating tointellectual effort. On another plane, Judge Kirby’s judgement isextremely interesting in that it suggests that intellectual propertyrights do have constitutionally defined limits. In other words, the107. See generally Lessig, supra note 42, at 131-35 (1999) (discussing the limits onthe protection of property).108. See generally Schenck v. United States, 249 U.S. 47, 52 (1919) (quotingHolmes, J., “The most stringent protection of free speech would not protect a man infalsely shouting fire in a theatre and causing a panic.”).109. Brian F. Fitzgerald, Underlying Rationales of Fair Use: Simplifying theCopyright Act, 2 S. Cross U. L. Rev. 153 (1998), available athttp://www.scu.edu.au/schools/lawj (last visited Nov. 3, 2001).110. See, e.g., Lessig, supra note 42, at 133-34 (explaining that in the UnitedStates, exclusive copyrights are granted for a limited term in accordance with theUnited States Constitution, and arguing the term should be limited by and linked tothe purpose for which the exclusive rights are granted, progressing not hindering theuseful arts); see generally Eldred, 239 F.3d at 372 (challenging the extension of U.S.copyright term to life of the author plus seventy years).111. See generally Lessig, supra note 42, at 133-34 (arguing that the public domainis implied in the United States Constitution as a consequence of the requirement thatexclusive rights be for limited times).