How Extra-Copyright Protection of Databases Can Be Constitutional
Loyola Law School Los Angeles
University of Dayton Law Review, Vol. 28, p. 159, 2003
Cardozo Legal Studies Research Paper No. 81
Following the Supreme Court's 1991 Feist decision, intellectual property and Constitutional law scholars have debated whether extra-copyright protection of databases can be established by Congress under its Commerce Clause power. This article presents the problem as one of the gravitational zone of the Commerce Clause versus that of the Copyright and Patent Clause. The article reasons that the Supreme Court decisions in International News Service v. Associated Press, Zacchini v. Scripps-Howard, and the 19th century Trademark Cases all point to the possibility of limited protection of databases under the Commerce Clause. The Article also considers the constitutionality of extra-copyright protection of databases against First Amendment claims as well as pre-emption arguments against state law misappropriation protection of databases.
Number of Pages in PDF File: 57Accepted Paper Series
Date posted: November 13, 2003 ; Last revised: November 10, 2007
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