How Extra-Copyright Protection of Databases Can Be Constitutional

57 Pages Posted: 13 Nov 2003 Last revised: 5 Jul 2016

See all articles by Justin Hughes

Justin Hughes

Loyola Law School Los Angeles


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.

Suggested Citation

Hughes, Justin, How Extra-Copyright Protection of Databases Can Be Constitutional. University of Dayton Law Review, Vol. 28, p. 159, 2003, Cardozo Legal Studies Research Paper No. 81, Available at SSRN: or

Justin Hughes (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8108 (Phone)


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