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.
Coming originally from the software realm, I do think that there is a need to protect, for example, software for a reasonable period of time in order to recoup the investment cost. And you can probably make that argument, to one level or another, for many areas of copyright.
As to the 1st Amdt. and Free Speech, keep in mind that that would just be a collateral benefit. After all, copyright is based Constitutionally on the Article II, Section 8 power grant: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;." Thus, I would argue that Microsoft may have a stronger Constitutional copyright interest than the NYT (esp. since much of what the NYT does is report facts that are exempt from copyright protection).
In a digital age, there needs to be a new paradigm. To say that copyright underwrites important political speech is somewhat specious. Now that distribution does not require any sort of central coporate entity as a gatekeeper, the only compensation required is for the time and energy to create. People will always buy something that has value. The government should not be in the business of insuring that value for the creator.
Your last sentence, however, is based on what. A wish, an aspiration, a delusion. Free speech needs constant protection, not underwriting. The founders would cringe that you seem to use a business model to describe what is necessary for the sustenance of political speech. The underwriting of political speech is easy to obtain and copyrights have nothing to do with it. The government regulates the many bandwidths that are used for dissemination of many types of speech and yet more and more of that bandwidth is being co-opted by corporate interests. Net neturality is more important that copyright for the "underwriting" of "important" politcal speech. It is ludicrous that campaigns should have to pay for television advertising. This should be the price that media corporations must pay to play.
The real culprit is that rights and privileges that are suited to individual human beings have been co-opted and sold by our legislators to corporations. The copyright is a grant of a monopoly. It seems to me that such rights should only protect an individual. Ultimately it is only individuals that come up with creative expression.
As an artist, a person cannot really expect that his "product" has a practical value. The government should not devalue the "pricelessness" of a creation by granting copyrights that are only meant to increase the value of the "new creation" by elongating the time that any such creation moves into the public domain. We mortals may die, but corporations do not. Why should such protection outlive the creator?
And what creations are really worth it that would not have been created anyway? If as a creator I am relying on my business plan, how can I truly create anything of value?
This is equally true for a variety of other works, even those written by a single author. For some types of books, it takes substantial amounts of up-front expenditures in order for the book to be written, even if it ultimately written by a single author. Research, photographs, sufficient time not spent earning the rent in order to write, these are things that are not free. Why should we not organize ourselves in corporations and other cooperative endeavors to improve our ability to accompish creative activities?
As for the "pricelessness" of art, an artist today won't be able to produce much art if he has to work a day job to pay the rent because nobody will actually pay money for his artwork. You seem to be claiming that there should be NO copyright, not just that the current period of protection is too long. The "time and energy to create" is not free, and not possessed by everybody. There will never be a shortage of people who want to write out their rants about the world today, or even to share their good news; thousands upon thousands of bloggers do that for free every day. But, like anything else in life, writing and analyzing and arguing is a skill, which is possessed by some more than others. If there were no copyright, there would be no class of professional writers, no group of people who earn their living by honing those skills. Only the wealthy elite and the chronically unemployed would have the time and energy to create.
I agree that current copyright law extends copyrights for too long, and for often specious claims (see the last guest-bloggers' posts on Happy Birthday, for example). But you pull that argument down by tying it to a radical anti-corporation agenda.
First, plainly there's some theory of free speech that's really driving the analysis here. In other words, to say copyright is good for free speech, don't you have to believe that the speech copyright protects is good and ought to be free? If you have, as I do, a minimalist theory of free speech--political speech, dissent, etc.--then the necessity of copyright law to protect "free speech" is a more open question. That's speech that arguably, compared to many of your examples, often doesn't take a substantial time commitment and money to create, let alone skill and care. So, this isn't a copyright thesis you're articulating as much as a more substantive thesis about what speech is good and worth protecting. As you say, "Many of these types of work have considerable First Amendment valye." *That's* the question.
Second, copyrights, like a lot of property rights, aren't self-enforcing. For there to be a copyright infringement (that means anything), there has to be a plaintiff copyright holder with the nuts to assert it. It's of course important to give the law its due, because the law matters, but let's also be honest about the fact that what ultimately matters in the realm of copyright isn't copyright law but rather the idiosyncratic indignations of this or that copyright holder. (I feel the same way about tort law, which has less to do, in my judgment, with defensible principles and more to do with whether folks like lady Palsgraff were able to take their lumps or not.)
If you frame the question as whether a certain category of speech can be created at all, without regard to quality, then I'm not sure I follow your claim that political speech is different. You can engage in pretty much any sort of speech without "skill and care." It's only if you want people to invest in skill and care that you need some sort of system in which such investment can be remunerative. Even if we take as minimalist a reading of the 1st am as you do, I'd think that we would want to incentivize political speech that involves as much skill and care as possible.
Ultimately though, I don't think that minimal a reading of the 1st am is tenable, as ultimately political speech has to include speech about public policy, which means speech about science, philosophy, life, the universe and everything. Where do you draw the line between "political speech and dissent" and speech that does not bear on either?
I tend to agree that copyright terms are too long, but I think there's a good reason why they should "outlive the creator." If the creator dies right after publication, wouldn't you want her family to be able to benefit from the work invested in creation?
Also, you should know that while corporations don't have a natural lifespan (though in fact they do "die" all the time), that doesn't mean that corporate-authored works have unlimited copyright terms. In fact, they will often have shorter terms than those of individuals. Corporate works get 95 years from publication, while individual works get death plus 70. So any individual who outlives the publication of his work by more than 25 years will get a longer copyright term than would a corporate author.
This is the wrong way to look at it. An IP monopoly should end when the marginal benefit of an additional year (extra innovation provided by extra expected profit) is less than the benefit to consumers by eliminating the monopoly (both in cost savings and wider distribution). Of course, where precisely this is impossible to determine (5, 10, 20 years). However, it is abundantly clear that the current copyright term is economically unjustifiable by a very wide margin.
I think it's quite clear that copyright is good for some speech, but not others. You probably won't find much disagreement that a) copyright is beneficial but b) current copyright terms are far too long.
The problems with copyright, as I see it, are largely a function of the over long lenght of copyright protection. The longer a work has been in existance, the more it becomes a part of "the collective unconsciousness" - one of the reasons that copyrights are still, technically, finite. A large number of copyrighted works, certainly ones that are commercially successful, borrow strongly from other public domain works. Additionally, the older a work becomes, the more difficult it becomes to locate the actual copyright holder or even to determine if there is still a copyright in effect. As a practical tool for supporting creative works, copyright really need be no longer than 15 or 20 years, probably even less.
Well that is just entirely too rational. Unfortunately, SCOTUS has wholly surrendered that determination to Congress, and Congressmen balance Disney's campaign contributions against some vague notion of "artistic benefit to society created by expanding the public domain of works." Disney wins every time. Where is an activist judge when you need one?
'Surrendered' isn't the right word - as it implies it was a judicial determination in the first place which was then given to Congress. But you get the point.
On the contrary, I have run into many people on the internets, including this site, who vehemently deny that allowing works to fall into the public domain has any measurable benefit, and who are perfectly comfortable with the current term lengths.
It's a mentality that springs from the same well that insists copyright infringement is akin to actual 'theft' (rather than analogous to misappropriation or trespass). Once you elevate copyright to that level, the disgust for letting things lapse into the public domain is emotionally similar to the feeling I have towards Kelo style real property takings.
"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.
Perhaps Prof. Netanel has heard of a phenomenon called television? Advertisements support the "content", which is provided free of charge to the viewer (ie, the shows are "a mere give-away for selling other products").
Thinking of other examples of the omnipresence of this sort of marketing of culture is left as an exercise for the student.
It is clear that you seek to legitimate current US copyright law as in fact promoting "the Progress of Science and useful Arts"; don't you think you would be a more effective advocate of that point of view if you had the least idea of what you are talking about?
I think that the facility that you ascribe to group action as only being definable within a corporate framework to have nothing to do with the "goals" of copyright.
With respect to the "pricelessness" of art, please explain to me in market terms what the value that art has. Is the value of the Mona Lisa as art determined by an auction? Such an auction only puts a value on specific "ownership" of the piece of art. Is that the source of inspiration? Is that the measure of the greatness of art? My point, perhaps, was more philosophical than legal or economic: Art simply has no practical value--it does not produce any other goods, it does not feed me? If there is a value, it cannot really be measure in an economic sense. My corporate rant is more about the concentration of these nebulous rights of those who only want a commodity. So let's dispense with the high minded aspirations that current copyright law protects artists and creator. It protects those who have enough capital to commodotize the creations.
Is the inspiration for creation and discovery only to be found in entrepeneurism? Right.
And to return to the corporate rant, explain to me how any of the recent changes to the law or how the law is applied these days enures to the benefit of the rugged individual or even groups of rugged individuals. The laws have been crafted to maximize the post creation value and retain a vise grip on utilization.
Right now Yoko Ono is suing the producers of the movie "Expelled" for using just 15 seconds of John Lennon's song "Imagine" without permission. If "Imagine" had been patented instead of copyrighted, the patent would have expired a long time ago. I hope Loco Bozo Oh-No-No loses the suit. It's past time to cut copyright-holders down to size.
Also, Yoko gets a fortune's worth of free advertising from the 2½-acre Strawberry Fields section of Central Park on land donated by the city (including advertising for "Imagine," whose name is at the center of the Strawberry Fields Memorial) but she is too chintzy to allow a few seconds of fair use of "Imagine" in a movie.
Your comment is "troubling." All that the copyright laws are supposed to do is help assure that the creators of the product will get a maximum reasonable return on their investment, whether the market for the product fizzles or not. By "reasonable," I mean that the copyright laws and their enforcement should be reasonable, and they are often not.
In the text of your post, you link to a post that you posted on the previous day, Online Journalism Versus Newspapers. You should also add another link at the end of this post. A link to this post will also appear at the end of the other post. On Volokh Conspiracy, links to related VC articles are supposed to be added at the end of a post.