NOTES

1.  

For clarification and further documentation of legal issues discussed in this chapter, see the article by J.H. Reichman and Pamela Samuelson (1997), "Intellectual Property Rights in Data?," Vanderbilt Law Review, 50(1):51-166.

2.  

U.S. Constitution, Article I, Section 8, clause 8.

3.  

See, e.g., Office of Technology Assessment (1986), Intellectual Property Rights in an Age of Electronics and Information, U.S. Government Printing Office, Washington, D.C., pp. 59-97; Anne Wells Branscomb (1994), Who Owns Information? From Privacy to Public Access, Basic Books, pp. 1-8.

4.  

See, e.g., Commission of the European Communities (1988), "Green Paper on Copyright and the Challenge of Technology-Copyright Issues Requiring Immediate Action," June 7 (hereinafter E.C. Green Paper); Laurence Kay (1995), "The Proposed E.U. Directive for the Legal Protection of Databases: A Cornerstone of the Information Society?," Eur. Intell. Prop. Rev. (hereinafter EIPR) 17:583.

5.  

World Intellectual Property Organization (WIPO) (1996) "Basic Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect of Databases to be Considered by the Diplomatic Conference" (Memorandum prepared by the Chairman of the Committee of Experts), WIPO doc. CRNR/DC/6, Geneva, August 30 (hereinafter WIPO Draft Database Treaty).

6.  

Both international copyright law under the Berne Convention and the domestic laws of most developed countries require that authors of literary works obtain a "moral right" to proper attribution for their published creations. See, e.g., Berne Convention, article 6 bis. Nevertheless, the U.S. Congress has so far declined to implement this obligation except with regard to visual or graphic artists (see 17 U.S.C. 106A (1994)), which leaves the problem of attribution largely to the vagaries of state and federal unfair competition law.

7.  

See, e.g., Frank Gotzen (1987), "Grands Orientations du Droit d'Auteur dans les Etats Membres de la C.E.E. en Matiere de Banques de Donnees," Banques de Donnees et Droit d'Auteur, pp. 85-98 (IRPI ed.); Paul Edward Geller (1991), "Copyright in Factual Compilations: U.S. Supreme Court Decides Feist Case," Int. Rev. Ind. Prop. Copyright L. (IIC) 22:802; Erbert J. Dommering (1991), "An Introduction to Information Law: Works of Fact at the Crossroads of Freedom and Protection," Protecting Works of Fact: Copyright, Freedom of Expression, and Information Law, 1-40 (E.J. Dommering and P. Bernt Hugenholz, eds.). However, the Nordic countries constituted an interesting exception by instituting sui generis laws to protect noncopyrightable compilations at a relatively early period. See, e.g., Gunnar W.G. Karnell (1991), ''The Nordic Catalogue Rule," Protecting Works of Fact, pp. 67-72.

8.  

See, e.g., J.H. Reichman (1995), "Charting the Collapse of the Patent-Copyright Dichotomy: Premises for a Restructured International Intellectual Property System," Cardozo Arts & Entertain. L. J., 13:475.

9.  

See, e.g., Jessica Litman (1990), "The Public Domain," Emory L. J., 39:965, 1015 ("Giving an author a copyright in ... a basic building block of her art ... risks denying that basic building block to all other authors who come into even fleeting contact with the first author's work").

10.  

See Reichman and Samuelson, note 1, at pp. 58-72, 137 (citing authorities).

11.  

See, e.g., Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974); Uniform Trade Secrets Act, 14 ULA §1(4) (1985). See generally J.H. Reichman (1992), "Overlapping Proprietary Rights in University-Generated Research Products: The Case of Computer Programs," Columbia-VLA J. Law & Arts, 17:51, 93-98.

12.  

Legal liability attached only to third parties who engaged in improper means of reverse engineering, such as bribing employees or resorting to industrial espionage. In such cases, the free riding offender was required to compensate the innovator only for the lost profits that would have accrued during the hypothetical period that would have been required to reverse engineer the product in question by honest means.



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