Reclaiming Copyright from Privacy: Public Interest in Use of Unpublished Materials

Abstract

Although the primary justification for Anglo-American copyright law is a utilitarian economic incentive, copyright law is sometimes invoked to protect privacy in unpublished materials. These efforts may present obstacles to those seeking to access and convey information about matters of public interest. While the U.S. Copyright Act's fair use doctrine has generally been protective of access and expression interests relating to copyright-protected unpublished materials, some deficiencies in treatment are noted in this study of U.S. appellate court opinions. A companion doctrine, the public interest defense from the United Kingdom, is examined for what it could add to U.S. copyright jurisprudence.

A Century of JMCQ Legal Issues in Media: Scholarly Commitment to Free Press, Free Speech, and More

“…Other copyright topics in JMCQ varied considerably, from alerting U.S. authors in 1962 of the relatively limited reach of international copyright laws (Mooradian, 1962), to analysis of how 1960s litigation over a Howard Hughes biography expanded understandings of the legal concept of fair use (Gross, 1973), to later arguments that misuse of copyright law to assert privacy interests could endanger access to unpublished materials involving matters of public interest (Carter, 2008).…”

Mass Communication Law and Policy Research and the Values of Free Expression

“…That represented a small decrease from the nine of 40 law and policy articles (23 percent) published from 1993-2002 that used a structural or historical approach and discussed theory. In the period 2003-2015, five articles used a doctrinal approach and touched on theory or values of freedom of expression without significant innovation or extension of First Amendment theory (Bunker & Bolger, 2003;Carter & Clark, 2006;Carter, 2008;Kozlowski, Bullard & Deets, 2009;Silver, 2011). In the same period, five additional law and policy articles adopted a doctrinal approach with little or no explicit theory discussion (Carter, 2005;Bunker, 2010;Kozlowski, 2011;Stewart, 2013;Pritchard, 2013).…”