Vol 7 No 1 - Roger Williams University School of Law

constitutional concept, is something less than a rigid,inflexible barrier to Congressional power. Indeed, if aperformer under the prior law could effectively protect alive musical performance, circumventing the fixationrequirement, simply by the device of simultaneousrecordation, the anti-bootlegging law seems to us likemore of an incremental change than a constitutionalbreakthrough. Common sense does not indicate thatextending copyright-like protection to a live performanceis fundamentally inconsistent with the Copyright Clause.For the foregoing reasons, we conclude that extendingcopyright-like protection in the instant case is notfundamentally inconsistent with the fixation requirementof the Copyright Clause. By contrast, the nonuniformbankruptcy statute at issue in Railway Labor Executiveswas irreconcilably inconsistent with the uniformityrequirement of the Bankruptcy Clause of theConstitution. 147The question remains as to whether a sui generis database lawenacted pursuant to the Commerce Clause would surviveconstitutional challenge. The argument would be made that theIP clause requires originality (a modicum of creativity andsomething that emanates from the author) and that allowinginformation to be propertized in situations where originality is notevident would be unconstitutional.148 The focus of the argumentis whether the IP clause sets the parameters for propertizinginformation through its specific requirements. One problem withthis approach is that the IP clause was established in another era.Nowadays, information is a lifeblood, both in social and economicterms, and it is conceivable that new ways of propertizinginformation have emerged and will continue to emerge that willdemand protection; yet the IP clause may not be up to thischallenge in conceptualisation. A consequence of limiting theCommerce Clause in this respect may be that interested partieswill resort to the states to enact their legislation (difficult, in theface of section 301 of the Copyright Act). This may result in lessthan desirable outcomes. While it is clear that restricting the147. Moghadam, 175 F.3d at 1279-81.148. See supra note 128.