Vol 7 No 1 - Roger Williams University School of Law

the parameters of the propertization of information throughlegislative means.128 In essence, the argument is that the IPclause is both a grant of power and a limitation on governmentpower ensuring such fundamental information rights of user andaccess, such as the right to ideas, the public domain and fairuse.129An even more interesting argument arising from thisapproach is whether state governments are in any way limited bythe specific requirements of the IP clause. In other words, doesthe IP clause in any way preempt state legislation on this topic?Goldstein held that the American states have, subject topreemption by legislation,130 a concurrent power to legislate uponintellectual property rights.131 In that case, the Supreme Courtimplied that the states are not constrained by any limits in thefederal IP clause as the legislation in question, which the Courtupheld, allowed perpetual duration of copyright—in contrast tothe limited times requirement in the federal clause.132The clause most likely to undermine the IP clause at thefederal level is the Commerce Clause. The United StatesCommerce Clause reads that Congress has the legislativeauthority “[t]o regulate Commerce with foreign Nations, andamong the several States . . . .”133 The Australian CommerceClause reads that the Commonwealth Parliament may make lawsfor the peace, order and good government of the Commonwealthwith respect to trade and commerce with other countries andamong the States.134In Moghadam, the court refused to decide whether the antibootleggingstatute could be upheld under the Copyright Clause;they were of the view that it came within the Commerce128. See Marci A. Hamilton, Database Protection and the Circuitous Route Aroundthe United States Constitution, in International Intellectual Property and the CommonLaw World (Charles E.F. Rickett & Graeme W. Austin eds., 2000); see also, Benkler,supra note 10, at 440-46; Paul J. Heald & Suzanna Sherry, Implied ConstitutionalLimits on Congressional Power: Construing the Commerce Power in Light of theIntellectual Property Clause, 2000 U. Ill. L. Rev. 1119 (2000); William Patry, TheEnumerated Powers Doctrine and Intellectual Property: An Imminent ConstitutionalCollision, 67 Geo. Wash. L. Rev. 359 (1999).129. See John Deere Co., 383 U.S. at 5.130. See, e.g., 17 U.S.C. § 301 (1994 & Supp. V 1999).131. Goldstein, 412 U.S. at 560.132. Id. at 560-61.133. U.S. Const. art I, § 8, cl. 3.134. Aust. Const. § 51(i).