Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It

Abstract

I wish to make what I hope is a rather modest claim: The current version of copyright, in which free speech problems are solved by keeping copyright owners from controlling certain transformative uses but in which more ordinary unauthorized copying is prohibited, is incompatible with the First Amendment. This is true whether one understands the First Amendment as protecting political speech, promoting democracy or selfgovernment, furthering the search for truth, or enhancing autonomy and enabling self-expression. These descriptions are necessarily incomplete. Most important, my discussion does not address the First Amendment as a purely negative right, protecting speakers from government action based on their speech. Yet if the First Amendment bars only government action, then copyright law itself ought to be unconstitutional as a government restriction on some speakers in order to improve the relative position of others. 1 Rather than defend a particular view of the First Amendment, I hope to offer examples in which copyright law conflicts with free speech as it is understood by a variety of theories. Most obviously, I defend copying as a method of self-expression and self-definition consistent with autonomybased accounts of freedom of speech. My argument also often refers to copying in service of democratic self-governance, which is the purpose of free speech identified by many current theorists of copyright and the First Amendment, including Jack Balkin, Yochai Benkler, and Neil Netanel. 2

Derecho de autor y democracia en la filosofía del derecho de Kant y Hegel

“…Por ejemplo, la doctrina del fair use, que consiste en el sistema abierto de excepciones al derecho de autor en las culturas jurídicas provenientes del Common Law, posee límites muy difusos. Por otra parte, su aplicación de parte de las cortes ha sido materia de controversia (Netanel, 2011;Samuelson, 2008;Tushnet, 2004). Esto implica que ella no es capaz de compensar los efectos negativos que la expansión del derecho de autor ha tenido.…”

A Counterfactual Impact Analysis of Fair Use Policy on Copyright Related Industries in Singapore

“…They also protect a number of legitimate uses of a work from the charge of copyright infringement and thus increase the social value of copyrighted goods to users. To provide safeguards to copyright law has been argued to support the social values of democratic society [24], balance the public interest with authors' and promote free speech [25], rectify copyright market failures [26], enable creators to build on the work of others [12] and accommodate established social practices [27].…”

Introduction: Intellectual Property on the Line

“…In this context, classical notions of 'private' property and free speech rights become difficult to validate. Tushnet (2004), for example, claims that the current model of free speech in the US is far too individualistic and so courts are too fixated 'on the individual on his soapbox' (p. 567). Advocates of collectivist theory often seek to improve democratic speech by stifling or restricting the speech of those with disproportionate power such as media conglomerates.…”