[Neil Netanel, guest-blogging, May 13, 2008 at 12:38pm] Trackbacks
Copyright's Paradox:

The paradox referenced in my book's title is that copyright serves both as an "engine of free expression" and silencer of free expression. Copyright law provides a vital economic incentive for the creation and distribution of much of the literature, commentary, music, art, and film that makes up our public discourse.

Yet copyright also burdens speech. We often copy or build upon another's words, images, or music to convey our own ideas effectively. We can't do that if a copyright holder withholds permission or insists upon a license fee that is beyond our means. And copyright doesn't extend merely to literal copying. It can also prevent parodying, remolding, critically dissecting, or incorporating portions of existing expression into a new, independently created work.

Both sides of that equation are much more complicated than that simple description, as are the ways in which we might try to solve the paradox and what the First Amendment should, therefore, say about copyright law. (At least, I think they are much more complicated; that's why I wrote a whole book about the copyright-free speech paradox!)

I'll consider the "engine of free expression" side first.

Copyright's economic incentive for the creation and dissemination of original expression is just one way that copyright promotes speech. Copyright's effect is qualitative, not just quantitative. It supports a sector of authors and publishers who look to the market, not government patronage, for financial sustenance and who thus gain considerable independence from government influence.

Moreover, copyright does not further free speech merely by providing pecuniary incentives and support. It also symbolically reinforces certain values and understandings that underlie our commitment to free speech. By encouraging authors, copyright gives the law's imprimatur to the social and political importance of individuals' new original contributions to public discourse.

A basic understanding that copyright promotes what we today think of as "First Amendment values" has been central to copyright law since the Founding. The Constitution gives Congress the authority to enact a copyright law "To Promote the Progress of Science," meaning learning in general. And the Framers were animated by a belief that copyright's support for the diffusion of knowledge was essential to individual liberty democratic government. In his address in support of the first copyright law, the Act of 1790, President George Washington declaimed that copyright's promotion of learning would help to secure a "free constitution … [b]y convincing those who are entrusted with public administration that every valuable end of government is best answered by the enlightened confidence of the public."

It is for at least some of those reasons, that in 1985 the Supreme Court denominated copyright as "the engine of free expression." But in the digital age does copyright law still serve as the engine of free expression? The Internet features a rich cacophony of original expression, much of which is distributed without any claim of copyright by its author (or at least without any effort to use copyright to prevent copying). Many Internet speakers are volunteers, happy to converse and express their views without any expectation of monetary remuneration. Others make their creative expression available for free to enhance their reputation or sell related products. Bottom line: If Congress repealed the Copyright Act tomorrow, we would still have more speech that we could possibly absorb in a lifetime available on the Internet.

So the claim that copyright is "engine of free expression" must rest on an argument about copyright's incremental free speech benefits. If we are to believe that copyright continues to be necessary to promote free speech, we must posit that (1) the copyright incentive generates the creation and dissemination of original expression over and above the rich array of speech that would be available even without copyright and (2) this additional copyright-incented expression has independent First Amendment value.

As I argue in my book, copyright does have this incremental benefit. Many works require a material commitment of time and money to create. Examples include numerous full-length motion pictures, documentaries, television programs, books, products of investigative journalism, paintings, musical compositions, and highly orchestrated sound recordings constitute such sustained works of authorship. It is generally far too expensive and time-consuming to create such works, let alone create with the considerable skill, care, and high quality that the best of such works evince, to rely on volunteer authors. Nor are alternative, noncopyright business models necessarily more desirable than copyright. For example, we might not want our cultural expression to be populated with product placement advertising or devalued by treating it as a mere give-away for selling other products.

Many of these types of works have considerable First Amendment value. And, as I wrote in yesterday's post in relation to the press, copyright's role in support a sector of media that is both financially robust and independent from dependency on government subsidy also remains of great importance in the digital age.

So in sum, while copyright is no longer THE engine of free expression (if it ever was the sole engine), it remains a vital underwriter of free speech.