Vol 7 No 1 - Roger Williams University School of Law

head of power. It is not clear whether the majority is alsosuggesting that these rights, once legislated, have anyconstitutional limit in the name of the public domain.103Likewise, the following passage from Judge Higgins in the UnionLabel case might suggest that there are no constitutional limits onintellectual property rights: “The power to make laws ‘withrespect to’ these rights involves the power to declare what shall bethe subject of the rights.”104 But that is far from clear.Further conjecture on this issue was raised by the High Courtin explaining the notion of “property” in Yanner v. Eaton:105It refers to a degree of power that is recognised in law aspower permissibly exercised over the thing. The conceptof “property” may be elusive. Usually it is treated as a“bundle of rights.” But even this may have its limits asan analytical tool or accurate description, and it may be,as Professor Gray has said, that “the ultimate fact aboutproperty is that it does not really exist: it is mereillusion.” Considering whether, or to what extent, therecan be property in knowledge or information or propertyin human tissue may illustrate some of the difficulties indeciding what is meant by “property” in a subjectmatter.106There is strong indication in this passage that informationalrights do have boundaries. Furthermore, the passage expresslyacknowledges that power is inherent in the notion of property. Asit is the function of law to mediate power relations in the name ofa prosperous, humane and ordered society, one could logicallyassert that property will have some legally defined limits.Lessig argues that just as real property has limits, e.g., it canbe zoned, so does intellectual property, e.g., fair use in copyrightlaw and these limits, when imposed, ensure that the collectiveinterest of society to access or use are privileged over the absolute103. Id. at para. 32 (“In particular it will be open to the Parliament to pursue itspolicies by legislation with respect to various subject-matters, if one of them appears ins 51 (xviii) on an adequate reading of that text.”). Id.104. (1908) 6 C.L.R. 469 at 611 (Austl.).105. (1999) 201 C.L.R. 351 (Austl.).106. Id. at 366; see generally Michael A. Heller, The Boundaries of Private Property,108 Yale L.J. 1163 (1999) (arguing that private property is not a useful analyticconcept unless it can be practically bounded).