Copyright & the First Amendment | Freedom Forum Institute
The question becomes how to balance these two legal areas. that person has trespassed on the creator's property, or copyrighted expression. .. The Motion Picture Association of America demanded that Internet service. First Amendment right to free speech—at least, theoretically there should be.1 not precisely a “law” made by Congress which abridges the “freedom of speech” and “of .. portion used in relation to the copyrighted work as a whole; (4) the ef-. Using the URL or DOI link below will ensure access to this page indefinitely For the first time in English law, freedom of expression has gained an explicit.
Copyright allows creators of expressive conduct to control the flow of certain information and expression, while the First Amendment ensures the free flow of information and expression. One purpose of copyright law is to provide protection for the creator of an expressive work.
The main purpose of the First Amendment is to ensure public access to information. Copyright protection reduces access to some information by limiting the extent to which it can be copied by others.
Copyright & the First Amendment
This is why copyright, along with patent and trademark law, is labeled under the rubric of intellectual property. This is called copyright infringement. If a person or company enables others to commit copyright infringement, they have committed contributory or vicarious infringement. Copyright exists to increase knowledge. It does so by providing creators with an economic incentive to produce work. Supreme Court has written: Why take your time to create a product if you will receive no reward?
Copyright law attempts to resolve this dilemma to a degree by distinguishing between expression and ideas. These are considered part of the public domain. Otherwise, society could never build on prior work. Copyright also provides for some built-in protection for First Amendment interests through what is called the fair-use privilege. Every book in literature, science, and art, borrows, and must necessarily borrow, and use much which was well known and used before.
The Copyright Act of incorporated, or codified, the common-law concept of fair use. Section of the copyright law begins with a preamble: Copyright law lists four nonexclusive factors as especially relevant in determining fair use: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
The nature of the copyrighted work. The proportion of material that was copied. The effect of the potential market for or value of the copyrighted work. The first factor requires a court to determine the purpose of the new work.
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If a new work has a commercial purpose, that generally leans against a finding of fair use. However, just because a work has a commercial purpose does not mean that the work is not protected by fair use. Parodies are a good example. Many parodies have been accorded a fair-use privilege even though they were created for commercial profit. The third factor asks how much the new work takes from the copyrighted material.
If the new work has harmed the market for the older work, a court will be less likely to find fair use. The Supreme Court examined the fair-use defense in this case. However, that year the Nation magazine acquired a copy of former President Gerald R. The Autobiography of Gerald R. The Nation published its article before Time had published anything.
The magazine also contended that its copying of portions of the memoirs was essential to its news reporting about the upcoming book. But we believe the Second Circuit gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest. Parodies present difficult copyright cases because a parody by its nature copies material from a previous work.
Courts ask whether a new work adds something new, or transforms, the prior work. In other words, the courts determine whether the parody is transformative. Acuff-Rose sued Campbell and his record company for copyright infringement. Campbell countered that his parody was fair use. A federal district court judge agreed with this argument, writing: However, on May 25,a three-judge panel of the 11th U.
Circuit Court of Appeals overturned the injunction, writing: An elusive doctrine Even though 2 Live Crew and Alice Randall at the preliminary injunction stage prevailed in the federal courts, both cases required extensive litigation. Courts will decide the application of the fair-use doctrine on a case-by-case basis. The concept of fair use is flexible and hard to define. A recent federal court decision explains: Others think about the regulation of hate speech on the Internet.
But some experts believe the greatest danger to free speech on the Internet comes from copyright. The cost of copying has come way down as technology has improved.
Many involved in intellectual-property issues, particularly owners of content, feared and still fear that the Internet would lead to widespread copying. They pushed Congress to enact legislation that would restore greater control to copyright owners. This push eventually led to the adoption of the Digital Millennium Copyright Act of This federal law makes it a crime to write and sell devices or software to circumvent a copyright-management system. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.
Copyright is therefore not susceptible to external human rights scrutiny. The defendants had put the photographs of the Paris catwalk shows on their public website. The fashion houses were using copyright to try to limit and control public dissemination of images of the shows. The engagement with the right to receive and impart information is clear. Copyright can engage freedom of expression more subtly.
Depending on the scope of copyright and the nature of the remedies against infringers or in some cases even against non-infringerswhen applied to any particular set of facts there are many ways in which copyright can step over the line and disproportionately interfere with Article 10 rights.
It is difficult, perhaps impossible, to identify clear dividing lines between proportionate and disproportionate interference. This is partly because copyright is itself regarded, at least in European human rights law, as a property right that has to be weighed in a balancing exercise with other rights such as freedom of expression.
Are copyright claims stifling free speech on the Internet? - National Constitution Center
It is also because the degree of interference may result not just from one aspect of copyright, but from the combination of several; and because the impact depends on the factual circumstances of each individual case. Different features of copyright can engage freedom of expression on different axes.
In this sense copyright can perhaps be likened to a mixing console, on which each aspect of copyright that potentially engages freedom of expression is represented by a slide control. Equally the combined effect of several controls set to less than maximum could also be disproportionate. If the slider were set at a level that restricted the use of high level ideas as well as detailed expression, then the interference with the Article 10 right might be disproportionate in itself; but even if not, the interference would be that much the greater if the remedy for infringement were an injunction preventing publication as opposed to a small amount of monetary compensation that permitted continuing dissemination.
Rather than attempt to identify a clear line between proportionality and disproportionality, or examine how rights should be balanced against each other, this article aims to do no more than describe the mixing console: The focus of this article is on engagement with freedom of expression and nothing else. Arguments of all kinds can be deployed for and against particular aspects of copyright. No given argument necessarily has anything to do with freedom of expression.
We should not forget some less prominent creatures of statute such as legislation prohibiting circumvention of copyright protection measures, and EU database right which is turning out in some respects to be more restrictive than copyright.20/4/2012 The Pulse : Internet Copyright Law vs Freedom of Speech
However for the sake of simplicity this article is limited for the most part to copyright. It is written largely from a UK perspective.
Copyright in other countries may differ.
The copyright and freedom of expression mixing console Article 19 of the Universal Declaration of Human Rights states: From Expression to Ideas It is a truism, if not always an illuminating one, that copyright protects expression and not ideas. It is a question of degree. Wherever and however fuzzily this line may be drawn, one reason why it exists is the recognition that all expression, however original, owes something to what has gone before —and the more general the previous knowledge the more likely it is to do so.
To insist that all expression should embody only completely original ideas, shorn of anything that has gone before, would be to require silence. This is a common enough argument. This argument engages a fundamental right of freedom of expression only if one regards the State as having a positive obligation to promote freedom of expression, as opposed to simply refraining from interference with it.
From Expression to Opinion The right of freedom of expression is most robustly protected by international human rights law when opinion, especially political opinion, is at stake. So European human rights law has developed a hierarchy in which individual political expression is more robustly protected than, say, commercial speech.
The potential for copyright to interfere on the opinion axis is high, even when an element of expression is taken. Hence the existence of various exceptions for activities such as criticism and review and for parody.