Vol 7 No 1 - Roger Williams University School of Law

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only such as are original, and are founded in the creativepowers of the mind. The writings which are to beprotected are the fruits of intellectual labor, embodied inthe form of books, prints, engravings, and the like.”In Burrow-Giles, the Court distilled the samerequirement from the Constitution’s use of the word“authors.” The Court defined “author,” in a constitutionalsense, to mean “he to whom anything owes its origin;originator; maker.” As in The Trade-Mark Cases, theCourt emphasized the creative component of originality.It described copyright as being limited to “originalintellectual conceptions of the author,” and stressed theimportance of requiring an author who accuses another ofinfringement to prove “the existence of those facts oforiginality, of intellectual production, of thought, andconception.”“No one may claim originality as to facts.” This isbecause facts do not owe their origin to an act ofauthorship. The distinction is one between creation anddiscovery: the first person to find and report a particularfact has not created the fact; he or she has merelydiscovered its existence. To borrow from Burrow-Giles,one who discovers a fact is not its “maker” or“originator.”48Building upon this reasoning, the Court held that the copyingof 1309 entries in the white pages of the telephone directory wasnot a copyright infringement nor was the selection or arrangementof the entries in basic alphabetical order creative enough to give athin layer of copyright protection to the arrangement of theentries.49As a consequence of the Feist decision, arguments were madethroughout the world for the creation of a sui generis form of legalprotection for the time and expense of creating databases. In1996, the European Union adopted a Directive on the LegalProtection of Databases50 that proposed a sui generis regime; later48. Id. at 345-47 (citations omitted).49. See BellSouth Advertising & Pub. Co. v. Donnelley Info. Pub., Inc., 999 F.2d1436 (11th Cir. 1993).50. Council Directive 96/9/EC, 1996 O.J. (L77) 20.
in 1996, the World Intellectual Property Organisation (WIPO)produced proposals for a similar international scheme for theprotection of databases. The EU Directive creates an exclusive suigeneris right for the makers of databases.51 The general objectiveof this right is to protect the investment of time, money and effortby the maker of a database, irrespective of whether the databaseis in itself innovative. According to the Directive, a database isprotected if there has been a substantial qualitative orquantitative investment in obtaining, verifying or presenting thecontents of the database.52 The duration of the protectionprovided by the Directive is fifteen years.53At present, the WIPO proposal has stalled. However, the EUDirective is slowly being introduced.54 The U.S. Congress hasconsidered a number of proposals for database protection but hasyet to enact a definitive sui generis regime. One proposal from1999 was the Collections of Information Antipiracy Act,55 whichread in part:1402. Prohibition against misappropriationAny person who extracts, or uses in commerce, all or asubstantial part, measured either quantitatively orqualitatively, of a collection of information gathered,organized, or maintained by another person through theinvestment of substantial monetary or other resources, soas to cause harm to the actual or potential market of thatother person, or a successor in interest of that otherperson, for a product or service that incorporates thatcollection of information and is offered or intended to beoffered for sale or otherwise in commerce by that otherperson, or a successor in interest of that person, shall beliable to that person or successor in interest for the51. Id. at art. 8. The reciprocity principle embodied in art. 11 means thatdatabase makers from countries outside the EU will not be given the benefits of thesedatabase rights unless their countries offer comparable protection to EU databasemakers.52. See id. at art. 7.53. Id. at art. 10.54. See, e.g., Council Directive 96/9/EC, 1996 O.J. (L77) 20, implemented by theCopyright and Rights in Databases Regulations 1997 (SI 1997/3032) (implementing theEU directive in the UK on Jan. 1, 1998); British Horseracing Board Ltd. v. William HillOrg., [2001] R.P.C. 31 (Ch. 2001) (Eng.).55. H.R. 354, 106th Cong. (1999).
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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
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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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 64 and 65: a work to be publicly identified as
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 74 and 75: emedies set forth in section 1406.T
Page 76 and 77: eproduced, though there be no ingen
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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
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Page 92 and 93: history dealing with either provisi
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Page 112 and 113: motivating force.While antitrust or
Page 114 and 115: unjustifiable anti-competitive cond
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Page 120 and 121: 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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