¹ Feist Pub., Inc. v. Rural Tel. Serv. Co., 499 US 340 (1991) [hereinafter: “The Feist Decision” or “Feist Publications, Inc. v. Rural Tel. Services”].

² The American constitution grants the Congress the authority to enact legislation which aims “…To promote the progress of science and the useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.” U.S. Const. Art. I, § 8, cl. 8. See generally Patterson, L. Ray & Lindberg, Stanley W., The Nature of Copyright (Athens, Ga., University of Georgia Press, 1991)Google Scholar.

³ See C.A. 513/89 Interlego A/S v. Exin-Lines Bros. S.A, 48(4) P.D. 133 [In Hebrew].

⁴ See Goldstein, Paul, “Copyright,” (1990/1991) 38 Journal of the Copyright Society of the U.S.A. 109, at 119Google Scholar.

⁵ See section I(2) infra.

⁶ Under current English law, section 1(1)(a) of the Copyright, Designs and Patents Act, 1988, ch, 48 [English]; (hereinafter: “CDPA 1988”), in order to obtain a copyright, a literary, dramatic, musical or artistic work must be “original.” As to copyright in a sound recording, broadcasts, cable programs, and published editions, there is no substantial or formal requirement of “originality,” but rather a limitation of protection to works which are not a slavish copy of previous works of their kind (See CDPA 1988., sections 5A(2), 6(6), 7(6), 8(2), 14(2), 14(3). In the context of databases, following the European Community Council Directive on the Legal Protection of Databases (no. 96/ 9/EC of March 1996), British Copyright Law has adopted, in this specific context, an approach that is partly “Continental” by nature. According to section 3A(1) of the CDPA: “For the purpose of this part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the databases the database constitutes the author's own intellectual creation.” However, alongside this notion, British law has acknowledged an additional “sui generis” “database right” when it comes to the content of the database itself. This right, which is not pre-conditioned upon an element of originality or “personal intellectual creation,” applies whenever the database is a product of substantial investment in obtaining, verifying, or presenting, the contents of the database. The term “Investment” includes any investment, derived either from financial, human or technical resources (See sections 12, 13, 16 of the Copyright and Rights in Databases Regulations 1997.)

⁷ See Stokes, Simon S., Art and Copyright (Oxford, Hart Publishing, 2001), 40–42Google Scholar, which describes the standard required for a work to qualify as original as “very low” (id., at 40) and with no more than “trivial effort and skill … required” (id., at 41). The often cited case in this context is: University of London Press Ltd. v: University Tutorial Ltd. [1916] 2 Ch. 601, 608–609, in which it has been declared that: “The word ‘original’ does not in this context mean that the work must be the expression of original inventive thought. Copyright acts are not concerned with the originality of ideas but with the expression of thought, and in the case of a ‘literal work’, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author.”

⁸ See Ladbroke (Football) Ltd v William Hill (Football) Ltd (H.L.(E.)) [1964] 1 W.L.R 273, 287, 289, 292, 1 All ER 465 The copyright in such a work has been recognized as to the entire specific final expression that had compiled previous materials or facts, and not as to those materials or facts for themselves. Such previous materials could, or could not, be a subject for an independent copyright protection according to their own nature and characteristics. Thus, for example, facts and information, which were included within a factual compilation, would not be subjected to an independent copyright. However, songs, which were included within an anthology, would be entitled for an independent copyright. In such a case the copyright in the anthology itself refers only to the original element of choosing and organizing the songs in a specific format. Therefore, the author of the anthology is obliged to obtain an authorization from the copyright owners of the songs that he intends to include within the anthology, and the reproduction of the anthology requires both an authorization from the author of the anthology, and from all the authors of the songs which are included within it.

⁹ See Football League v. Littlewoods [1959] Ch. 637, 2 All E.R. 546, 3 W.L.R. 42

¹⁰ See the famous case of Walter v. Lane [1900] A.C., 539. The copyright is in the specific transcript which was written by the journalist, and it is additional and independent to the copyright which may be granted as to the public speech itself.

¹¹ See Independent Television Publications v. Time Out [1984] F.S.R. 64.

¹² See Antiquesportfolio.com plc. Rodney Fitch & Co. Ltd. [2001] FSR 345, at 352–354.

¹³ See The Reject Shop plc v. Manners [1995] FSR 870, at 876.

¹⁴ See Rose v. Information Services Ltd. [1981] FSR 254 (Denying copyright from the title “The Lawyer's Diary” on the grounds that there was too slight a degree of skill and labor in it).

¹⁵ See Cornish, William .R., Intellectual Property – Patents, Copyright, Trade Marks and Allied Rights (London, Sweet & Maxwell, Fourth Edition, 1999), at 385–386Google Scholar; Stokes, supra n. 7, at 101–113.

¹⁶ This basic rule is stated in many cases. For a recent House of Lords decision referring and applying the Idea-Expression Dichotomy, see Designers Guild Ltd. v. Russell Williams (Textiles) Ltd. (H.L.(E.)). [2000] 1 W.L.R. 2416, at 2422–2423, [1 All E.R. 700] For examples of factual information in the context, see e.g. Walter v. Steinkopff [1892] 3 Ch. 489; Express Newspapers v. News (UK) [1991] F.S.R. 36, at 41.

¹⁷ See e.g. Corelli v. Gray (1913) 29 T.L.R. 570; Harman v. Osborne [1967] 2 All E.R. 324, 1 W.L.R. 723.

¹⁸ See Ladbroke (Football) Ltd v William Hill (Football) Ltd (1962) [1980] RPC 539, 546, CA. See also Elanco v. Mandops, [1980] R.P.C. 213. Thus, for example, in PCR Ltd. v. Dow Jones Telerate Ltd. [1998] FSR 170, The defendant has been found liable for copyright infringement for passing the essential parts of information which was extracted from the plaintiffs statistical reports for subscribers about crop forecasting, to commodity traders.

¹⁹ See Express Newspapers v. News (UK) [1991] F.S.R. 36, at 41–42; Ravenscroft v. Herbert [1980] RPC 193, at 205–206. See also Cornish, supra n. 15, at 493.

²⁰ See generally Garnett, K., James, J.K., Davies, G., Copinger and Skone James – On Copyright (London, Sweet & Maxwell, 14th edition, 1999), at 420–425.Google Scholar

²² Ibid, at 420–421 and the cases cited therein.

²³ See supra n. 19 and the cases and sources cited therein.

²⁴ See Ashdown v. Telegraph Group Ltd. [2001] E.M.L.R. 44, CA, in which this issue has been discussed, while the court has explicitly acknowledged the need to interpret and apply copyright law in accordance with freedom of speech as a constitutional value.

²⁵ This claim is also valid, to some extent, in the context of “judiciary made” protection that is based upon claims such as Misappropriation, or Unjust Enrichment. See the leading American Supreme Court case of International News Service v. The Associated Press, 248 US 215 (1918). But see also National Basketball Ass'n v. Motorola, INC. 105 F.3d 841 (2^nd Cir. 1997) (narrowing and limiting the scope of INS “hot news” misappropriation claim). See also American Law Institute, Restatement of the Law Third, Unfair Competition (St. Paul, Minn., 1995)Google Scholar, § 38.C.: which summarizes the influence of the INS decision as follows: “Although the decision appears to rest on a rationale of unjust enrichment potentially applicable to a wide range of competitive conduct, subsequent decisions have recognized that broad application of the unjust enrichment rationale in a competitive marketplace would unreasonably restrain competition and undermine the public interest in access to valuable information. The facts of the INS decision are unusual and may serve, in part, to limit its rationale. The originator of valuable information or other intangible assets normally has an opportunity to exploit the advantage of a lead time in the market. This can provide the originator with an opportunity to recover the costs of development and in many cases is sufficient to encourage continued investment. However, the appropriation in INS has deprived Associated Press of any lead-time advantage, at least on the West Coast. Associated Press thus faced a direct threat to its primary market by a competitor who had incurred none of the development costs associated with collecting the news… The limited extent to which the INS rationale has been incorporated into the common law of the states indicates that the decision is properly viewed as a response to unusual circumstances rather than as a statement of generally applicable principles of common law. In most of the small number of cases in which the misappropriation doctrine has been determinative, the defendant's appropriation, like that in INS, resulted in direct competition in the plaintiff's primary market.”

²⁶ For a general survey of court decisions prior to the Feist decision, see Abrams, Howard B., “Originality and Creativity in Copyright Law” (1992) 55(2) Law and Contemporary Problems 3, at 5–7CrossRefGoogle Scholar. Cases that reflect the interpretation which is described in the above text are, for example: L. Batlin & Son v. Snyder 536 F.2d 486, 490 (2d Cir 1976); Alfred Bell & Co. v. Catalana Fine Arts, Inc., 191 F2d 99, 102 (2d Cir 1951); Hoague-Sprague Corp. v. Frank C. Meyer Co., 31 F2d 583, 586 (EDNY 1929).

²⁷ 17 U.S.C. § 102(a).

²⁸ H.R. Rep. No. 1476, at 51 (1976) – see the 2d Sess of the 94^th Cong; S. Rep. No. 473, at 50 (1975) – see the 1^st sess. Of the 94^th Cong.

²⁹ See Alva Studios, Inc. v. Winninger 177 F. Supp 265 (S.D.N.Y. 1959). However, since the original sculpture was in public domain, there was no prohibition for anyone else to create one's own version of the original sculpture.

³⁰ See e.g. Hutchinson Tel. Co. v. Frontier Directory Co., 770 F. 2d 128 (8^th Cir. 1985). See also Jeweler's Circular Publishing Co. v. Keystone Publishing Co. 281 F. 83, 88 (2d Cir, 1922). For a detailed survey of such cases see Abrams, supra n. 26, at 8, footnote 34 therein.

³¹ See Eckes v. Card Proces Update 736 F2d 859 (2d Cir 1984); Financial Information Inc. v. Moody's Investors Service 808 F2d 204 (2d Cir 1986).

³² See Yen, Alfred C., “The Legacy of Feist: Consequences of the Weak Connection Between Copyright and the Economics of Public Goods,” (1991) 52 Ohio State Law Journal 1343, at 1352Google Scholar.

³³ See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985); Eldred v. Ashcroft, 537 U.S. 186 (2003).

³⁴ See e.g. Rosemont Enterprises, Inc. v. Random House, Inc. 366 F. 2d 303,309–310 (2d Cir, 1966); Hoehling Universal City Studios, Inc, 618 F. 2d 972 (2d Cir, 1980); Miller v. Universal City Studios, Inc., 650 F. 2d 1365 (5^th Cir, 1981); Nash v. CBS, Inc., 899 F.2d 1537, 1542 (7^th Cir, 1990).

³⁵ We refer generally to “European Copyright Systems” although there are some significant differences between the copyright traditions of different Continental countries, such as the difference between the Dualist Theory of Copyright, applied most prominently in France, and The Monist Theory, applied in Germany. Moreover, various countries such as the Nordic countries or the Netherlands have their own unique attributes to copyright law and philosophical backgrounds. However, for our limited purpose, of discussing the requirement of originality, and in order not to lengthen the discussion, we shall focus on the few basic notions which are common to European copyright systems in general.

³⁶ Such is the American system of copyright. See e.g Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994); supra n. 1, at 349–350; and of course the Intellectual Property Clause itself which states a Utilitarian purpose: …to promote the Progress of science and the useful arts” (U.S. Const., art. 1, § IIX, cl. 8).

³⁷ These are considerations which are associated with the British philosophy of copyright. For an historical survey and an analysis regarding the impact of such considerations on British copyright law see Yen, Alfred C., “Restoring the Natural Law: Copyright as Labor and Possession” (1990) 51 Ohio Law Journal 517Google Scholar.

³⁸ See generally Kase, Francis J., Copyright Thought in Continental Europe: Its Development, Legal Theories and Philosophy (South Hackensack, N.J., F.B. Rothman, 1967), at 10–11Google Scholar.

³⁹ See e.g. Goldstein, Paul, International Copyright–Principles, Law, and Practice (Oxford, New York, Oxford University Press, 2001), at 10Google Scholar.

⁴⁰ See The Schoolbook Case (1971) 31Google Scholar BVerfGE 229 as quoted in Kommers, Donald .P., The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, Duke University Press, Second Edition, 1997), at 262–264Google Scholar.

⁴¹ We shall use the term “Copyright” when referring to the economic rights protection which is granted under European systems; although the usage of this term is not an accurate translation of the terms which are used in European systems. It is would be more appropriate, to translate The German term “Urheberrecht” or the French term “droit d'auteur,” to the terms “author's right” or “author's right under law.” However, for our purposes, it would be more convenient to use the term “Copyright” as a general term for the economic rights that an author of a work possesses in European systems as well.

⁴² See section 2(2) of the German Law on Copyright and Neighboring Rights (Copyright Law) 1965, as translated by WTPO – World Intellectual Property Organization: Copyright and Neighboring Rights Laws and Treaties (Industrial Property and Copyright, No. 3, March 1997).

⁴³ See Dietz, Adolf, “Germany,” in Geller, Paul E., ed., International Copyright Law and Practice (New York, Matthew Bender, Rel2–10/2000 Pub.399)Google Scholar, § 2[1][b].

⁴⁴ See L. 111–1. (Section 111–1.) of The Law on the Intellectual Property Code (Legislative Part) (No. 92–597 of July 1, 1992) as translated by WIPO – World Intellectual Property Organization, Copyright and Neighboring Rights Laws and Treaties (Industrial Property and Copyright, September 1995).

⁴⁵ See Andre. Lucas, & Plaisant, Robert, “France,” in Geller, Paul E., ed., International Copyright Law and Practice (New York, Matthew Bender, Rel.9–10/1997 Pub.399)Google Scholar, § 2[l][b][ii][A]; Ginsburg, Jane C., “French Copyright Law: A Comparative Overview” (1988/1989) 36 Journal of the Copyright Society of the U.S.A, 269, at 274Google Scholar.

⁴⁶ See Goldstein, supra n. 39, at 162. Goldstein mentions that in a similar manner, the protection that is granted by the Dutch Copyright Act, which is generally subordinated to a “Continental” Requirement of Creativity, has a residual protection for “all other writing” which has been interpreted in a manner that encompasses even the most trivial and banal writings, such as radio and television listings, address books, and telephone directories.

⁴⁷ See Gunnar W.G. Karnell, “The Nordic Catalogue Rule,” in Egbert J. Dommering, P. Bernt Hugenholtz; Ginsburg, Jane C.… [et al.], eds., Protecting Works of Fact (Deventer, Boston, Kluwer Law, 1991), at 67–72Google Scholar.

⁴⁸ See 42 supra n. 42.

⁴⁹ Similar dual protection for “Creative Photographs” and “simple photographs” can also be found in Nordic countries and in Italy. See Gendreau, Ysolde, Nordemann, Axel, Oesch, Rainer, Copyright and Photographs – An International Survey (London, Boston, Kluwer Law International, 1999) 163, at 236–237Google Scholar.

⁵⁰ See supra n. 42.

⁵¹ See Deitz, supra n. 43, at § 9[1][c].

⁵² Ibid., at § 9[1].

⁵³ See Lucas & Plaisant, supra n. 45, at § 2[1][b][ii], § 9; Stewart, Stephan M., International Copyright and Neighboring Rights (London, Butterworths, 2^nd edition, 1989) 375Google Scholar; Ginsburg, Jane C., “French Copyright Law: A Comparative Overview,” (1988/1989) 36 Journal of the Copyright Society of the U.S.A. 269, at 274Google Scholar.

⁵⁴ See Goldstein, supra n. 39, at 283–292.

⁵⁵ See Deitz, supra n. 43, at §1[1], §2[1][b], §7[1], §9[1]. As Deitz outlines, there is one exception to this general scheme and that is performers' rights, which are protected under the category of Neighboring Rights, but are still entitled to moral rights. However, this fact is consistent with the conclusions that have been presented in the above-mentioned text, because performances do bear a personal imprint of their performers and therefore it is justified to recognize the existence of moral rights within them.

⁵⁶ See id.

⁵⁷ The works, which are protected by neighboring rights according to Book II of The French Law on the Intellectual Property Code (Legislative Part) (No. 92–597 of 1 July 1992) (See supra n. 44), are afforded only with economic rights and not with moral rights. According to Title II of Book I of the French Law, moral rights are recognized only in the context of an “Author” of a “Work of the Mind” which is entitled to “copyright” protection. As to German copyright law, one exception to this general scheme is the rights of performers, which are protected under the host of neighboring rights, whereas performers are still entitled to moral rights protection (see Art. L. 212–2 to the French Law on the Intellectual Property Code).

⁵⁸ See section I.A.2. supra.

⁵⁹ Justice Blackmun concurred with the results.

⁶⁰ See supra n. 1, at 346–347.

⁶¹ See ibid., at 345–346, 362.

⁶² See ibid., at 345.

⁶³ See ibid., at 349, 352–353.

⁶⁴ See Yen, supra n. 32, at 1361.

⁶⁵ See Feist Publications, Inc. v. Rural Tel. Services, 499 U.S., 340, at 349–250.

⁶⁶ See supra n. 1, at 358.

⁶⁷ See supra n. 1, at 362–363.

⁶⁸ Subsequent cases in the United States include, among others: Warren Publ'g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1517–21 (11th Cir. 1997) (not protecting a system for selecting listings in compilation), cert. denied, 522 U.S. 963 (1997); Transwestern Publ'g Co. v. Multimedia Marketing Associates, Inc., 133 F.3d 773, 776–780 (10th Cir. 1998) (refusal to protect an arrangement of advertisements in a directory); American Dental Ass'n v. Delta Dental Plans Ass'n, 126 F.3d 977, 979–81 (7th Cir. 1997) (considering that a taxonomy classifying and indexing dental procedures may be protected, albeit not as a compilation, but rather as an original description); West Publ'g v. Mead Data Central, Inc. 799 F.2d 1219 (8th Cir. 1986); Oasis Publ'g Co. v. West Publ'g Co., 924 F. Supp. 918 (D. Minn. 1996) (both cases protecting compilations of court reports and the “star pagination” system for indexing the reports); as opposed to: Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 674 and 693 (2d Cir. 1998) (in companion cases, finding that the same compilation lacks sufficient “originality” and that the “star pagination” system is unprotectable).

⁶⁹ C.A. 513/89 Interlego A/S V. Exin-Lines Bros. SA, 48(4) P.D., 133 [Hebrew] – supra n. 3.

⁷⁰ See Tele-Direct (Publications) Inc. v. American Business Information, Inc. (1997) 76 C.P.R. (3d) 296 (fed. C.A.), rev denied, 1998. See also CCH Canadian Ltd. v. Law Society of Upper Canada (1999) 2 C.P.R. (4th) 129 (Fed. Ct.) (in which a compiling reported judicial decisions, even adding headnotes and other matters, has been found as lacking the “creative spark” essential to a finding of originality). By contrast, in another case, different facts, such as the selection of information useful for the community, the court has allowed to distinguish another telephone directory as original (Ital-Press Ltd. v. Sicoli (1999) 86 C.P.R. (3d) 129 (Fed. Ct.) (telephone directory of Italian-Canadians in the Edmonton area).

⁷¹ See Hager v. ECW Press Ltd. [1998] 2 F.C. 287, 85 C.P.R. (3d) 289 (Fed. Ct.). It has recognized copyright protection in an interviewer's transcription of an interviewee's words.

⁷² See Telstra Corporation Limited u. Desktop Marketing System Pty Ltd. [2001] FCA 612.

⁷³ Such that derive from the article in the United States Constitution which grants the congress the authority: “…To promote the progress of science and the useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.” (U.S. Const. Art. 1, § IIX, cl. 8.)

⁷⁴ Gorman, Robert A., “Fact or Fancy: Implications for Copyright” (1981/1982) 29 Journal of the Copyright Society of the U.S.A. 560, 562, 585, 592Google Scholar; Ginsburg, Jane C., “Creation and Commercial Value: Copyright Protection of Works of Information,” (1990) 90 Columbia Law Review 1865, 1869, 1899, 1907–1908, 1919–1922CrossRefGoogle Scholar; Ginsburg, Jane C., “No ‘Sweat’? Copyright and Other Protection of Works of Information after Feist v. Rural Telephone,” (1992) 92 Columbia Law Review 338, 344–353CrossRefGoogle Scholar; Dreyfuss, Rochelle C., “A Wiseguy's Approach to Information Products: Muscling Copyright and Patent into A Unitary Theory of Intellectual Property,” (1992) The Supreme Court Review 195CrossRefGoogle Scholar; VerSteeg, Russ, “Rethinking Originality,” (1993) 34 William and Mary Law Review 801Google Scholar; Heald, Paul J., “The Vices of Originality,” (1991) The Supreme Court Review 144Google Scholar; Denicola, Robert C., “Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works,” (1981) 81 Columbia Law Review 517, at 533, 542CrossRefGoogle Scholar.

⁷⁵ Even presuming that the paintings are in Public Domain, with regards to their copyright, still, as long as they are physically in the possession of their legal owner, access to a painting requires permission from its owner.

⁷⁶ 36 F. Supp 2d 191 (S.D.N.Y, 1999) [hereinafter: “The Bridgeman Art Library decision”].

⁷⁷ See Bridgeman Art Library Ltd. v. Corel Corp 36 F. Supp 2d 191, 196 (S.D.N.Y, 1999).

⁷⁸ See Bridgeman Art Library Ltd. v. Corel Corp 36 F. Supp 2d 191, 195–196 (S.D.N.Y, 1999).

⁷⁹ See Antiquesportfolio.com plc. Rodney Fitch & Co. Ltd. [2001] FSR 345.

⁸⁰ See section II.A. supra.

⁸¹ See e.g. the case of ProCD, Inc. v. Zeidenberg 86 F. 3d 1447 (7^th cir. 1996), which will be discussed in the next section. Although this case dealt with a digitized format of a telephone directory, the same techniques of separating the database from the application software are also applied in the context of visual digitized archives.

⁸² One potential claim, in this context, is that there is no need for copyright protection since the producer could use contractual provisions, as well as technical means of protection, in order to protect his economic interests. This claim is based on the widespread of these two additional schemes of protecting digitized materials such as a CD-ROM or material that is accessible through the Internet. The first scheme – technical protection devices – is already supported by legislation in some countries. Such legislation can prohibit the circumvention of such devices (see, for example, the American Digital Millennium Copyright Act (“DMCA”), Pub. L. No. 105–304, sec 103, § 1201, 112 Stat. 2860, 2863–65 (1998)). The second scheme – contractual measures, refers mainly to mass-market “shrinkwrap” licenses, including such that are imposed before accessing and using a digitized work (e.g. through the internet). Both methods have been thoroughly criticized for their sweeping and unbalanced scope of protection, and to some extent even their legality and constitutionality have been questioned. See Netanel, Neil W., “Locating Copyright within the First Amendment Skein,” (2001) 54 Stan. L. Rev. “1, 74–81CrossRefGoogle Scholar; Koren, Niva E., “Private Ordering and Copyrights in the Information Age,” (2002) 2 The Academic College of Administration Law Review 319 [in Hebrew]Google Scholar. An analysis of these alternative schemes of protection is beyond the scope of this article. However, what should be stated is that even if these alternatives schemes of protection are applicable to some extent, the question of their influence, on the desired scope of the traditional copyright scheme, is a general question, and it is not confined only to the context of the non-creative materials that are mentioned in the text above. The same contentions, regarding the alternative schemes of protection, could also be raised in the context of a CD-ROM with creative materials. Furthermore, although they are not enforceable towards third parties, such alternative schemes of protection tend to be more rigid than the traditional copyright schemes. Therefore, it is doubtful whether these schemes set a desirable alternative for granting protection; especially from a public-oriented perspective.

⁸³ See Netanel ibid, at p. 13–20.

⁸⁴ See Heald, supra n. 74, at p. 164–167; Dreier, Thomas K, “Authorship and New Technologies from the Viewpoint of Civil Law Traditions,” (1995) 26 IIC, 989, 994–999Google Scholar. See also Cable News Network v. Video Monitoring Services 940 F.2d 1471,1485–1486 (11^th Cir, 1991).

⁸⁵ See section I.B. supra.

⁸⁶ See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250–251, 259 (1903); Gross v. Seligman, 212 F. 930 (2d Cir, 1914); Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130,141–143 (S.D.N.Y, 1968); Gracen v. Bradford Exch., 698 F.2d 300 (1983, 7^th Cir.). See also Jeweler's Circular Publishing Co. v. Keystone Publishing Co. 274 F. 932, 934 (S.D.N.Y. 1921) aff'd 281 F. 83, 88 (2d Cir. 1922). See also Nimmer, M.B., Nimmer, D., Nimmer On Copyright – Volume 1, § 2.08[E][1] (New York, Matthew Bender, 2001, Release No. 56, 12 2001)Google Scholar.

⁸⁷ See Los Angeles News Services v. Tullo 973 F.2d 791, 793–795 ( 9^th Cir, 1992).

⁸⁸ See part III infra.

⁸⁹ See also Gendreau, Nordemann & Oesch, supra n. 49, at 303, 306. See also Gorman, Robert A., “Copyright Protection for the Collection and Representation of Facts,” (1963) 76 Harvard Law Review 1569, at 1594–1600CrossRefGoogle Scholar.

⁹⁰ ProCD, Inc. v. Zeidenberg 86 F. 3d 1447 (7^th cir. 1996).

⁹¹ See supra n. 1, at 363.

⁹² There is a vast literature on the public and social goals of copyright law. American Copyright Law is based solely on a public oriented justification and consequently this is the main paradigm which is discussed by literature. A comprehensive and critical discussion of these matters can be found in: Lunney, Gillian L., “Reexamining Copyright Incentives-Access Paradigm,” (1996) 49 Vanderbilt Law Review 483Google Scholar; Sterk, Stewart E., “Rhetoric and Reality in Copyright Law,” (1996) 94 Michigan Law Review 1197CrossRefGoogle Scholar; Netanel, Neil W., “Copyright and a Democratic Civil Society,” (1996) 106 Yale Law Journal 283CrossRefGoogle Scholar; Landes, William M. & Posner, Richard A. “An Economic Analysis of Copyright Law,” (1989) 18 Journal Of Legal Studies 325CrossRefGoogle Scholar.

⁹³ Copyright subject matter – being intangible works, is public goods, since they are both non-excludable and non-rivalrous: because of the abstract nature of intangible works, without the support of any legal protection, once such works are publicly exposed, their creator cannot efficiently exclude others from gaining access to the works and utilizing them freely (without rewarding the creator for the effort and resources he had invested in the production of such works). This prospective problem of “free riding” reduces the incentive for investing efforts and resources in the production and dissemination of intangible works. Copyright overcomes this problem by granting a legal right of exclusiveness which enables the copyright owner to exclude others from using his work without his authorization, and thus collects fees for the use of the intangible work and secures a return for his investment.

⁹⁴ For a good discussion in the matter, see Netanel, supra n. 92; Lunny, supra n. 92.

⁹⁵ See generally Benkler, Yochai, “Free as Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,” (1999) 74 N.Y.U.L. Rev 354Google Scholar; Benkler, Yochai, “Siren Songs and Amish Children: Autonomy, Information and Law,” (2001) 76 N.Y.U.L. Rev 23Google Scholar.

⁹⁶ Indeed, even under an economic analysis of copyright law, the “Costs” and “Benefits,” which are measured and taken into account, could include values and rights that are not purely quantitative. However, let alone the practical and empirical difficulties of such attempts, according to some right theories, the mere idea of measuring the “quantity” of constitutional rights and values contradicts the main essence of such rights as values which embody a preferential legal status (see also Dworkin, Ronald, “Rights as Trumps,” in Waldron, J., ed., Theories of Rights (Oxford, Oxford University Press, 1984) 153Google Scholar.

⁹⁷ See section III.C. infra.

⁹⁸ See section III.C. supra.

⁹⁹ For a comprehensive analysis of these legislative proposals see Hamilton, Marci A., “Database Protection and the Circuitous Route Around the United States Constitution,” in Rickett, Charles E.F. & Austin, Graeme W., eds., International Intellectual Property and Common Law World” (Oxford, Hart Publications, 2000), 9–33Google Scholar; Benkler, Yochai, “Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information,” (2000) 15 Berkeley Tech. L.J. 535Google Scholar.

¹⁰⁰ The collection of Information Antipiracy Act, HR. 354, 106^th Cong. (1999) (hereinafter: the “Antipiracy Bill”).

¹⁰¹ See the Antipiracy bill, ibid, § 1401(2).

¹⁰² See e.g. British Broadcasting Corporation v. British Satellite Broadcasting LTD [1991] 3 W.L.R 174. In this case, the broadcasting of highlights, from the world cup football finals, by one television channel, as they were taken from the BBC, who had the exclusive broadcasting rights in the games, were classified as “Fair Dealing” for the purpose of news reporting. The court has ruled that, since the purpose of the use of extracts from the games had been to use them for a news report purpose, and was not a substitute broadcast of the full games, even a competitive commercial broadcaster could benefit from the Fair Use Defense.

¹⁰³ Thus, even in legal systems, such as the British copyright system, or the Israeli Law, which limit the Fair Use Defense only to limited categories of uses: mainly research, criticism, review and newspaper summary; See e.g. section 2(1)(i) of the Israeli Copyright Act, 1911 in The Laws of Palestine (revised edition, vol. III, London 1934), at p. 2477.Google Scholar; not to mention the Fair Use exemption in the American Federal Copyright Law which is structured as a general “open” defense that is not confined only to the categories of uses which are defined explicitly within the statutory article (see 17 U.S.C. § 107 (1994).

¹⁰⁴ See the list of terms and conditions in section 1403 of the proposed bill, supra n. 100.

¹⁰⁵ Consumer and Investor Access to Information Act, HR 1858, 106^th Cong (1999) (hereinafter: “The Consumer Access Bill”).

¹⁰⁶ see the proposed Consumer Access Bill – ibid, § 101(5)

¹⁰⁷ See section I.A.1. supra.

¹⁰⁸ Directive 96/9/EC of the European Parliament and of the Council of 11 March on the Legal Protection of Databases [1996] OJ 177/20 (hereinafter: “The EU Database Directive”).

¹⁰⁹ See the Basic Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect of Databases, CRNE/DC/6, World Intellectual Property Organization (WIPO) Preamble (30 August 1996). (Hereinafter: “The WIPO database treaty proposal”).

¹¹⁰ But also see Article 10(2) of the TRIPSs agreement, which provides databases with a level of legal protection that is parallel to the one that derives from the Feist decision (Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, 15 December 1993, 1, art. 10(2), 33 I.L.M. 83, 87). Article 10(2) to the TRIPS agreement provides that: “Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.”

¹¹¹ See the preamble to the Directive.

¹¹² See Article 1 of the Directive.

¹¹³ See section I.B. supra.

¹¹⁴ See Article 7(1) of the Directive.

¹¹⁵ See section I.A.1, supra for the British copyright law in this context.

¹¹⁶ See section I.A.1, supra.

¹¹⁷ See supra n. 109.

¹¹⁸ See supra n. 1.

¹¹⁹ See 17 U.S.C. § 107 (1994).

¹²⁰ See generally Olson, Mancur, The Logic of Collective Action (Cambridge, Mass., Harvard University Press, 1971) 125–128Google Scholar; Buchanan, James M. & Tullock, Gordon, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor, University of Michigan Press, 1962) 283–295CrossRefGoogle Scholar.

¹²¹ See Farber, Daniel A. & Frickey, Philip P., Law and Public Choice (Chicago, University of Chicago Press, 1991) 142–143CrossRefGoogle Scholar. But see also text accompanying footnote 127, and the sources cited therein, regarding the claim that the judiciary might also be subjected to some of the drawbacks that characterize the legislative process according to public choice theory.

¹²² There is a vast literature on the distinction between a “rule” – a detailed norm which demands relatively limited discretion as to its applicability to a set of facts, and between a “standard” – a relatively broad and abstracted norm which gives courts broad discretion in determining the content of the legal norm and the conditions and circumstances of its applicability. See e.g.: Kaplow, Louis, “Rules Versus Standards: An Economic Analysis,” (1992) 42 Duke L.J. 557CrossRefGoogle Scholar.

¹²³ Of course, this is only one of many considerations that should be taken into account in this context.

¹²⁴ See generally Sterk, supra n. 92, at 1244–1246; Netanel, supra n. 82, at 67–69; Litman, Jessica D., “Copyright, Compromise, and Legislative History,” (1987) 72 Cornell L. Rev. 857Google Scholar.

¹²⁵ For an illuminating analysis and description of such processes in the context of the recent amendments to the Federal Copyright Law in the United States, see Litman, Jessica, Digital Copyright (Amherst, NY, Prometheus Books, 2001)Google Scholar.

¹²⁶ Regarding this matter, there seems to be no difference whether such new legislation proposals and developments are enacted as a part of the “copyright legislation,” or as part of another “external” and independent statutory scheme. My claim is that regardless of the “formal” legislative vessel of such new statutory developments, these new statutory schemes are expected to be shaped by and subject to the industry's rent seeking influence as it is was described in the above-mentioned text. Similarly, the “geographical location” of such new legislation proposals cannot overcome their subordination to the constitutional limitations that are imposed in some countries, regarding the nature and scope of copyright's protection, such as the prerequisites of the Intellectual Property Clause in The American Constitution (U.S. CONST. Art. 1 § 8, cl. 8) which include the limitation of “limited times” and the promotion of “science and the useful arts.” See also Benkler, Yochai, “Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information,” (2000) 15 Berkeley Tech L.J. 535Google Scholar.

¹²⁷ See Elhauge, Einer R., “Does Interest Group Theory Justify More Intrusive Judicial Review,” (1991) 101 Yale Law Journal 31CrossRefGoogle Scholar; Cross, Frank B., “The Judiciary and Public Choice,” (1999) 50 Hastings Law Journal 355Google Scholar.

¹²⁸ 33 U.S. (8 Pet.) 591 (1834).

¹²⁹ A similar result was reached previously in England in the seminal case of Donaldson v. Beckett 1 Eng. Rep. 837 (1774), which had overruled a prior decision in Millar v. Taylor 98 Eng. Rep. 201 (1769).

¹³⁰ See Rose, Mark, Authors and Owners – The Invention of Copyright (Cambridge, Harvard University Press, 1993)Google Scholar; Chartier, Roger, “Figures of the Author,” in Sherman, Bran & Strowel, Alain, eds., Of Authors and Origins (Oxford, Clarendon Press, 1994) 7, at 13Google Scholar; Edelman, Bernard, Ownership of the Image – Elements for a Marxist Theory of Law (Translated by Elizabeth Kingdom, London, Routledge & Kegan Paul, 1979)Google Scholar; Woodmansee, Martha & Jaszi, Peter, “Introduction,” in Woodmansee, Martha & Jaszi, Peter, eds., The Construction of Authorship (Durham, Duke University Press, 1994), 1, 7Google Scholar; Peter Jaszi, “On the Author Effect: Contemporary Copyright and Collective Creativity,” ibid., at 29, 31–34; Thomas Streeter, “Broadcast Copyright and the Bureaucratization of Property,” ibid., at 303, 305–306; Monroe E. Price & Malla Pollack, “The Author in Copyright: Notes for The Literary Critic,” ibid., at 439, 440.

¹³¹ See White-Smith Music Publ'g Co. v. Apollo Co., 209 U.S. 1, 17–18 (1908). In this case, which concerned pianola rolls, the musical composition was reproduced onto the pianola roll through perforations that, when run through a player piano, would perform the musical composition. The Supreme Court nonetheless held that the unauthorized pianola rolls were not infringing “copies” because, unlike sheet music, the musical composition was not directly perceptible from the perforations. Thus, Justice Holmes's concurrence objection was that “on principle anything that mechanically reproduces that collocation of sounds ought to be held a copy.” (Id. at 20). As Professor Jane Ginsburg thoroughly observes: “it is likely that the White-Smith Court anticipated that copyright owner claims regarding unauthorized pianola rolls were an initial sally in the larger battle over music copyright owners' exclusive reproduction rights – a battle whose outcome would determine control over the emerging new technology of phonograms. Hence, the Court may have suspected that the music publishers were endeavoring either to prevent the distribution of a new format that competed with sheet music, or, equally perniciously, to control the market for phonogram recording equipment and phonograph players. Indeed, it appears that music publishers initiated the case as part of a plan between music publishers and a manufacturer of phonogram recording equipment to establish that the copyright extended to mechanical reproduction, and then to transfer mechanical recording rights to a single establishment. In return, the single authorized manufacturer would pay the music copyright owners a commission on every phonograph machine sold. Because the logic of Justice Holmes's concurrence clearly applied to other forms of mechanical recording as well as to piano rolls, a victory in the piano roll case would bode ill for the nascent recording industry, as the copyright owners' plan would have ensured that only one entrant would be permitted (See Ginsburg, Jane C., “Copyright and Control over New Technologies of Dissemination,” (2001) 101 Columbia Law Review 1613, at 1622–1623, 1626–1627CrossRefGoogle Scholar.

As Ginsburg further describes, the legislative reaction, for the court's decision, was by extending the reproduction rights also to mechanical reproductions, but then substantially limiting the exclusivity of the right with a compulsory license regarding a recording of a musical composition that had already been recorded before (see 17 U.S.C. 1(e) (1925) (repealed 1978).

¹³² See Teleprompter Corp. v. CBS, 415 U.S. 394, 411–14 (1974); Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 399–402 (1968). In these two cases the American Supreme court had held that cable retransmissions of broadcast television did not involve a “performance” of the works and, thus, fell outside of copyright's exclusive rights. Here also, the legislative reaction did not wait long to come. The reaction of the legislator in this context was a cable retransmission compulsory license introduced in the 1976 Copyright Act. After Supreme Court's ruling, according to the retransmissions were not “performances,” the Congress redefined the term “perform” in extremely broad terms, clearly sufficient to cover the conduct at issue in the Fortnightly and Teleprompter cases (See 17 U.S.C. 101 (1994)). Nevertheless, congress then instituted a complicated compulsory license scheme designed to permit retransmission of local and distant signals, but subject to payment of the statutory license fee, as well as to a requirement that the cable operator not change the content of the retransmitted signal in any way (See 17 U.S.C. 101 (1994)).

¹³³ See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984). In this case the motion picture producers sued unsuccessfully the manufacturers and distributors of mass market videotape recorders, on the ground that the recorders facilitated massive uncompensated and infringing “home-style” private copying of television programs. Their claim was rejected by the majority opinion that classified such uses as falling within the fair use exemption.

¹³⁴ See Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1076–81 (9th Cir. 1999). In this case, the Recording Industry Association of America (RIAA) sought to enjoin distribution of the Rio MP3 Player on the ground that the Rio violated the terms of the 1992 Audio Home Recording Act (Pub. L. No. 102–563, 106 Stat. 4237 (1992) (codified as amended at 17 U.S.C. 1001–1010 (1994)), because the Rio was a “digital audio recording device” that did not incorporate the Serial Copy Management System (SCMS) mandated by the statute. In considering a temporary injunction, the district court held that the Rio was likely to be a device covered by the statute and noted the possibility that the producers therefore might be obliged to pay a statutory royalty for each machine sold, but that the SCMS requirement was irrelevant, as the Rio was not capable of making serial recordings in any event. Both sides appealed. The Ninth Circuit held that the Rio was not a “digital audio recording device,” and, therefore, was exempt both from the SCMS requirement and from any obligation to pay royalties, as the statute regulated only digital audio recording devices.

¹³⁵ See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001); In re Aimster Copyright Litig. 334 Bd 643 (7^th Cir. 2003); MGM Studios, Inc. v. Grokster, Ltd, 259 F. Supp. 2d 1029; 2003 U.S. Dist. LEXIS 6994; 66 U.S.P.Q.2D (BNA) 1579; Copy. L. Rep. (CCH) P28, 609, 25April 2003, (decided).

¹³⁶ See Ginsburg, supra n. 131.

¹³⁷ See supra nn. 131–135, and the description of the various court decisions in these cases, therein.

¹³⁸ See supra nn. 131–135 and the description therein.

¹³⁹ For a survey of this historical development see Patry, William F., The Fair Use Privilege in Copyright Law (Washington, D.C., Bureau of National Affairs, 2^nd edition, 1995) at pages 6–17Google Scholar (reviewing early English cases), and at pages 19–25 (reviewing the case of Folsom v. Marsh 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) – the first fair use case to be decided in the United States.

¹⁴⁰ See Nichols v. Universal Pictures Corporation 45 F.2d 119 (2d Cir. 1930). Only in 1976 this basic principle was codified into the Federal Copyright Law (See 17 U.S.C. 102(b) (1990) according to: “In no case does copyright protection for an original work of authorship extend to any idea … regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

¹⁴¹ See Baker v. Seldon 101 U.S. 99, 103 (1879).

¹⁴² See United States v. Loew's, Inc., 371 U.S. 38, 44–51, 9 L. Ed. 2d 11, 83 S. Ct. 97 (1962); Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, (4^th Cir, 1990). See also “Clarifying the Copyright Misuse Defense,” (1991) 104 Harvard Law Review 1289CrossRefGoogle Scholar.

¹⁴³ Kaplan, Benjamin, An Unhurried View of Copyright (New York, Columbia University Press, 1967) 17Google Scholar.

¹⁴⁴ See, e.g., Sayre v. Moore, 102 Eng. Rep. 139 (K.B. 1785); Newbery's Case, 98 Eng. Rep. 913 (Ch. 1773); Burnett v. Chetwood, 35 Eng. Rep. 1008 (Ch. 1720). See also Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853) (holding that a German translation of Uncle Tom's Cabin was a new work and not merely a reproduction of the original). Kaplan, Benjamin, An Unhurried View of Copyright (New York, Columbia University Press, 1967) 17Google Scholar.

¹⁴⁵ Thus, for example, in the context of American Copyright law, following the narrow approach of Sayre v. Moore (supra n. 144), regarding the inapplicability of copyright protection for translation, the 1870 Copyright Act provided that “authors may reserve the right to dramatize or to translate their own works.” Act of July 8, 1870, ch. 230, 86, 16 Stat. 212 (1871). Later on, The 1909 Act added the right to make adaptations and other versions of certain types of original works (See Act of March 4, 1909, ch. 320, 1(b), 35 Stat. 1075, 1075), and, finally, the Copyright Act of 1976 expands this right by according authors the exclusive right to prepare derivative works based upon any type of copyrighted work (see 17 U.S.C. 106(2) (1994)), thus, while its very broad definition of “derivative work” includes: “a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” (id., at 101).

¹⁴⁶ For the course of such a development within England's copyright law see Laddie, Hugh, Prescott, Peter, Victoria, Mary, The Modern Law of Copyright and Designs (London, Butterworths, 3^rd edition, 1999) 142–151Google Scholar.

¹⁴⁷ See Netanel, supra n. 82, at 12–30, and also Harper & Row Publishers, Inc. v. Nation Enterprises. 471 U.S. 539, 549–550, 559 n.9, 561, 568 (1985).

¹⁴⁸ Eldred v. Ashcroft, 537 U.S. 186 (2003) in which the American Supreme Court upheld the constitutionality of the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105–298, 102, 112 Stat. 2827, 2827–28 (1998) (codified as amended at 17 U.S.C. 101, 108, 203(a)(2), 301(c), 302, 303, 304, 504 (2000)), which extended the term of copyright protection by twenty years.

¹⁴⁹ Universal City Studios, Inc. v. Corley, 273 F.3d 429, 458–60 (2d Cir. 2001). This case dealt with the recent statutory enactment of the Digital Millennium Copyright Act, Pub. L. No. 105–304, 103, 1201, 112 Stat. 2860, 2863–65 (1998) (codified as amended at 17 U.S.C. 103, 1201 (2000), which among other things prohibits both the circumvention of technology that controls access to copyrighted works and the manufacture and sale of devices that are primarily used to circumvent technological controls over access to, or use of, copyrighted works. See 17 U.S.C. 1201(a)(1)(A), (a)(2)(A), (b)(1)(A) (2000) (banning the circumvention of access controls, trafficking in devices for circumventing access controls, and trafficking in devices for circumventing use controls). In Universal City Studios, Inc. v. Corley, the court held that the distribution of software, which enabled the circumvention of encryption that was designed to control access to, and reproduction of, films stored on DVDs, contravened the DMCA, even if user copying would constitute fair use.

¹⁵⁰ See Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001) (per curium), vacated by 268 F.3d 1257 (11th Cir. 2001).

¹⁵¹ Dastar Corp. v. Twentieth Century Fox Film Corp., 156 L. Ed. 2d 18, 123 S. Ct. (2003).

¹⁵² See supra n. 149. For the “Enclosure Side Effects” of the Digital Millennium Act see Benkler, Yochai, “Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,” (1999) 74 N.Y.U. L. Rev. 354, at 414–429Google Scholar.

¹⁵³ See Ely, John H., Democracy and Distrust (Cambridge, Harvard University Press, 1985)Google Scholar.

¹⁵⁴ For a historical perspective see Rose, supra n. 130.

¹⁵⁵ It should be clarified that the above-mentioned support regarding the regime of standards refers to the limitations and exemptions of copyright protection. The outcome would have been totally different if the regime of standards had referred only to the mere issue of the proprietary protection and not to its boundaries, limitations and exceptions (as in the case of supplementing copyright law with a judicial misappropriation cause of claim that has no traditional backbone of explicit limitations and exemptions).

¹⁵⁶ See Pessach, Guy, “Copyright Law as a Silencing Restriction on Noninfringing Materials: Unveiling the Scope of Copyright's Diversity Externalities,” (2003) 76 S. Cal. L. Rev. 1067Google Scholar.

¹⁵⁷ See e.g. Farber, Daniel A. & Frickey, Philip P., “Positive Political Theory in the Nineties,” (1992) 80 Geo. L.J. 457Google Scholar, and sources cited therein.

¹⁵⁸ See supra n. 100.

¹⁵⁹ See Ward u. Rock Against Racism 491 U.S. 781, 791 (1989); Turner Broad. Sys., Inc. v. FCC 512 U.S. 622(1994), 661–662.

¹⁶⁰ The European Convention for the Protection of Human Rights and Fundamental Freedoms [213 U.N.T.S. 221, E.T.S. 5, U.K.T.S. 71 (1953), signed at Rome 4 Nov. 1950; entered into force 3 Sept. 1953].

¹⁶¹ For a general survey see van Dijk, Pieter, van Hoof, G.J.H., Theory and Practice of the European Convention on Human Rights (The Hague, Boston, Kluwer Law International, 3^rd edition, 1998) 557Google Scholar.

¹⁶² See e.g. Netanel, Neil W., “Market Hierarchy and Copyright in Our System of Free Expression,” (2000) 53 Van. L. Rev 1879Google Scholar; Netanel, Neil W., “Copyright and a Democratic Civil Society,” (1996) 106 Yale Law Journal 283, 295–297, 336, 399CrossRefGoogle Scholar; Zimmerman, Diane L., “Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights,” (1992) 33 William and Mary Law Review 665, at 665–668Google Scholar.

¹⁶³ See generally Shiffrin, Steven H., The First Amendment, Democracy, and Romance (Cambridge, Mass., Harvard University Press, 1990)CrossRefGoogle Scholar; Raz, Joseph, “Free Expression and Personal Identification,” (1991) 11 Oxford Journal of Legal Studies 303CrossRefGoogle Scholar.

¹⁶⁴ For various variations of similar arguments see: Ginsburg, Jane C., “No ‘Sweat’? Copyright and Other Protection of Works of Information after Feist v. Rural Telephone,” (1992) 92 Columbia Law Review 338, at 344–353CrossRefGoogle Scholar; Ginsburg, Jane C., “Creation and Commercial Value: Copyright Protection of Works of Information,” (1990) 90 Columbia Law Review 1865, 1869, 1899, 1907–1908, 1919–1922CrossRefGoogle Scholar; Dreyfuss, supra n. 74, at 208–211, 216–218; Heald, supra n. 74, at 158; Yen, supra n. 32, at 1374, 1378.

¹⁶⁵ See also Gordon, Wendy J., “Asymmetric Market Failure and Prisoner's Dilemma in Intellectual Property,” (1992) 17 Dayton L. Rev. 853Google Scholar.

¹⁶⁶ See supra n. 2 and the text therein.

¹⁶⁷ For Germany see The Schoolbook Case (1971) 31 BVerfGE 229 as quoted in Kommers, supra n. 40 at 262–264. In the United Kingdom, in a recent decision (Ashdown v. Telegraph Group Ltd. [2001] E.M.L.R. 44, CA) The Court of Appeals has recognized copyright as part of the constitutional right to private property according to Article 1 of the First Protocol to the European Convention on Human Rights as it had been adopted by the recent British Human Rights Act 1998. In Israel the Supreme Court has classified the economic aspects of copyright as part of the constitutional right to private property under article 3 of the Basic Law on Human Dignity and Liberty. See e.g. C.A. (by permission to appeal) 2687/92 Geva v. Walt Disney Co., 48(1) P.D. 251 [in Hebrew].

¹⁶⁸ See e.g. Hughes, Justin, “The Philosophy of Intellectual Property,” (1988) 77 Georgetown Law Journal 287, at 296–300Google Scholar; Yen, supra n. 37.

¹⁶⁹ For a discussion in the context of copyright see Aoki, Keith, “(Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship,” (1996) 38 Stan. L. Rev. 1293CrossRefGoogle Scholar.

¹⁷⁰ See e.g. Breyer, Stephen, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs,” (1970) 84 Harvard Law Review 281, at 285–289CrossRefGoogle Scholar; Hettinger, Edwin C., “Justifying Intellectual Property,” (1989) 18 Philosophy and Public Affairs 31, at 37–39Google Scholar.

¹⁷¹ See Rawls, John, Political Liberalism (New York, Columbia University Press, 1993) 298Google Scholar.

¹⁷² See generally Waldron, Jeremy, The Right to Private Property (Oxford, Clarendon Press, 1988), at 196–198Google Scholar; Munzer, Stephen R., A Theory of Property (New York, Cambridge University Press, 1990), at 28–30, 79, 183CrossRefGoogle Scholar.

¹⁷³ For a similar proposal see Baron, Paula, “Back to the Future: Learning from the Past: The Database Debate,” (2001) 62 Ohio St. L.J. 879Google Scholar.

¹⁷⁴ See Baron, ibid; Lunney, supra n. 92 at 533–540; Kaplan, supra n. 143, at 17.