Vol 7 No 1 - Roger Williams University School of Law

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a work to be publicly identified as such and to preventothers from claiming authorship of the work, to preventothers from wrongfully attributing to an author worksthat are not his or hers or that are unauthorised alteredversions of his or her work; andThe right of integrity, that is the right to object todistortions or derogatory distortions of a work.26The obligation to afford moral rights to creators of copyrightmaterials arises from Article 6bis of the Berne Convention, whichprovides that:(1) Independently of the author’s economic rights, andeven after the transfer of the said rights, the author shallhave the right to claim authorship of the work and toobject to any distortion, mutilation or other modificationof, or other derogatory action in relation to, the said work,which would be prejudicial to his honour or reputation.(2) The rights granted to the author in accordance withthe preceding paragraph shall, after his death, bemaintained, at least until the expiry of the economicrights, and shall be exercisable by the persons orinstitutions authorised by the legislation of the countrywhere protection is claimed. However, those countrieswhose legislation, at the moment of their ratification of oraccession to this Act, does not provide for the protectionafter the death of the author of all the rights set out inthe preceding paragraph may provide that some of theserights may, after his death, cease to be maintained.(3) The means of redress for safeguarding the rightsgranted by this Article shall be governed by thelegislation of the country where protection is claimed.Until recently, Australian law provided only minimal andindirect recognition for moral rights, notwithstanding Article 6bis ofthe Berne Convention. The recognition of moral rights under theCopyright Act, 1968, was limited to a duty not to falsely attributethe authorship of a work, a duty not to falsely attribute the26. Brian F. Fitzgerald & Anne Fitzgerald, Cyberlaw: Cases and Materials on theInternet, Digital Intellectual Property and Electronic Commerce 336 (Prospect Media,Sydney 2002).
authorship of an altered work and a duty not to falsely attribute theauthorship of a reproduction of an artistic work. The CopyrightAmendment (Moral Rights) Act, 2000, which entered into force onDecember 21, 2000, introduces the moral rights of integrity andattribution of authorship and strengthens the earlier prohibitionon false attribution of authorship. Under the new Australian law,moral rights are not infringed by acts to which the creator hasconsented, providing the consent is in writing and meets certainother conditions.Interestingly, Canada introduced moral rights in theCopyright Act of 1931; however, scope for waiver has meant that aculture of moral rights has not been prominent in Canadiancopyright law.27 The United States has legislated for some verylimited applications of moral rights,28 however many Americanacademics are wary of the potential of moral rights to lock upinformation and inhibit free speech, especially in the context ofthe Internet.29Culturally Enriching RightsIn a world where digitized information (and itscontrol/ownership) is of continuing and increasing significance tothe economy, society and culture, we have seen renewed relevancefor and interest in Fisher’s fourth category of IP theory: socialplanning or cultural enhancement theory. Every significant claimover digital value at issue at the moment can be described as oneinvolving a battle between utilitarian or Lockean/natural rightsclaims to ownership versus the creation of intellectual propertyrights for reasons of cultural enhancement. In the digitalenvironment of an information society, where “information islifeblood,” the cultural aspects of intellectual property are broughtinto focus. The decentering of the author as creator is part of thisphenomenon, but more so the realisation that an expressive workis a collection of culturally imbued facts. As we shall see below, in27. See Vaver, supra note 19, at 87-96.28. See generally Visual Artists Rights Act, 17 U.S.C. § 106A (1994 & Supp. IV1998) (granting rights of attribution and integrity to certain authors of visual art);Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) (summarizing the scope ofmoral rights in the law of the United States).29. See generally William W. Fisher III, Property and Contract on the Internet, 73Chi.-Kent L. Rev. 1203 (1998) (suggesting moral rights should have more limitedapplication in the eclectic transnational and digitized world of the Internet).
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
Page 14 and 15: and other laws of countries in whic
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Page 18 and 19: Indeed, the quotation contains the
Page 20 and 21: suggestive of a bill designed merel
Page 22 and 23: United States ought to adopt in lig
Page 24 and 25: the Supreme Court to reiterate in F
Page 26 and 27: United States Supreme Court quoted
Page 28 and 29: copying of “a work protected unde
Page 30 and 31: shall be null and void.65 Member st
Page 32 and 33: determining the fate of database pr
Page 34 and 35: The compilation of a database requi
Page 36 and 37: management information, including c
Page 38 and 39: one congressional witness noted:
Page 40 and 41: that were made after the initial te
Page 42 and 43: preferred language of many business
Page 44 and 45: the sui generis right mainly serves
Page 46 and 47: the Paris Convention for the Protec
Page 48 and 49: directly or indirectly.159 In other
Page 50 and 51: of resources that qualifies that po
Page 52 and 53: wish to encourage private lawsuits,
Page 54 and 55: contract.”185 While section 1405(
Page 56 and 57: The Directive will inevitably drive
Page 58 and 59: the process through which digital p
Page 60 and 61: the United States or the trade and
Page 62 and 63: patent law is the utilitarian ethic
Page 66 and 67: the United States, the power of the
Page 68 and 69: Theory one proposes to reward the a
Page 70 and 71: of intellectual property rights mus
Page 72 and 73: only such as are original, and are
Page 74 and 75: emedies set forth in section 1406.T
Page 76 and 77: eproduced, though there be no ingen
Page 78 and 79: the same, or substantially the same
Page 80 and 81: with respect to “patents of inven
Page 82 and 83: Because, in part of the joint reaso
Page 84 and 85: even by the plaintiffs today.86The
Page 86 and 87: statute: the “Limited Times” re
Page 88 and 89: head of power. It is not clear whet
Page 90 and 91: elationship of power between the Co
Page 92 and 93: history dealing with either provisi
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Page 96 and 97: the legislative power contained in
Page 98 and 99: negative pregnant that suggests tha
Page 100 and 101: scope of the Commerce Clause in the
Page 102 and 103: gave incentive for people to expres
Page 104 and 105: ejected this purported distinction
Page 106 and 107: talk, communicate or consume inform
Page 108 and 109: frameworks that will allow diversit
Page 110 and 111: that a monopolist should not seek t
Page 112 and 113: motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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