Tony Pak is a J.D. candidate at Osgoode Hall and is taking the Intellectual Property Theory course.
In Neil Netanel’s recent book titled, “Copyright’s Paradox”, he advocates for a copyright system that puts freedom of expression at the forefront. He argues that copyright has been thought of as a property right despite the fact that it was originally conceived as a balance designed to encourage original expression. As a result, freedom of expression has come into direct conflict with copyright.
In Netanel’s Introduction to Copyright’s Paradox, he considers the history of copyright law and comes to the conclusion that the conflict between freedom of expression and copyright has risen to the forefront by reason of changes in technology. Copying different forms of media has become easier than when copyright law was first conceived. Furthermore, with the expansion of the internet, the transmission and dissemination of works has become extremely convenient.
Based on copyright law’s original purpose, Netanel submits that the scope of rights given to authors should be determined based on its ability to serve as an “engine of free speech.” According to him, there are two reasons behind elevating free speech to such a level. Firstly, the enormous potential impact that copyright law has on free speech leads to the inescapable conclusion that free speech should serve to shape copyright. Secondly, free speech would likely be the only way to properly determine the scope of rights afforded to authors.
Netanel’s views of the US copyright system allow him to submit an argument where free speech and copyright inform one another. The fact that copyright is enshrined in the US Constitution supports to this result. However, in Canada, free speech, as enshrined in our Charter, would seem to indicate that it must dictate the limits of copyright as the Copyright Act must be consistent with the Charter’s rights and values. It is this prospect that I find troubling especially in the digital age.
In Netanel’s Introduction, he also discusses the ongoing lawsuits against YouTube and MySpace. I argue that despite the fact that all of the material on YouTube and MySpace can be considered some form of expression, there is a lot of material that is not original and simply a direct, impermissible, uncredited quote from the original author. One solution, currently in practice, has been blanket licenses by the likes of Universal Studios, but this licensing system really does nothing to promote original expression. Although the concept of originality does not jibe with the goal of free expression, I am somewhat unwilling to entirely give up on the concept. In my opinion, it cannot be denied that the copyright system does provide some incentive for original expression. A blanket license takes away whatever incentive, however small, for original expression that the copyright system could provide.
Furthermore, YouTube is not exactly known for preventing what are obvious infringements of copyright. One can frequently find full length music videos and television shows with very little added expression if any. In fact, one can even find users pirating other users; submitting material as if it were their own. Free expression does inform and should inform copyright, especially when it is clear there is meaning behind the expression. Unfortunately, in the context of YouTube, the possibility of abuse is far too high and any meaning is frequently hidden by blatant plagiarism. Freedom of expression, under these circumstances, should be limited to the extent that it can only inform copyright but should not override it.
3 Responses
Freedom of Expression or Copyright: Should One Take Precedence Over the Other?
Wiseman Ubochioma
Wiseman Ubochioma is a Doctoral Candidate at Osgoode Hall Law School of York University, Canada and is taking the Intellectual Property Theory Course.
Netanel’s work is in tandem with the contending issue of re-thinking the role of copyright law and policy as an engine of freedom of expression. His piece reveals a hodge-podge of contradiction in the role of copyright in the promotion of free speech. Netanel’s argues that although copyright provides an incentive for speech, it also prevents speakers from conveying their message, and by logical extension, impedes free speech. Thus, he posits that the modern configuration of copyright leans towards imposing unacceptable burden of speech. The pendulum swings in favour of copyright owners because of the perception that copyright is an absolute property right instead of a limited right granted by the state in order to further a specific public purpose.
The argument of originality of works, which in most cases barely exist, makes it compelling to consider Netanel’s argument that although exclusive rights in original expression granted to authors help in the creation of innovative works, they should still be balanced with the all important right to free speech. Thus, he argues that as a matter of normative principle, free speech concerns should play a central role in shaping copyright doctrine. Free speech should also be adopted as the litmus test in determining the character and reach of copyright policy.
I am compelled by grandeur of thought to agree with this reasoning. The present copyright laws are now used by authors or industry owners as a subterfuge to protect their economic interest, while unduly burdening speech. This is even more so when some of the works belong to the public domain or even lack originality. This reflects Netanel’s position on the undue expansive rights granted to authors under the Digital Millennium Copyright Act. In his piece titled “Locating Copyright Within the First Amendment Skein”, he observes that the Act was unduly over-stretched to protect content providers who place a copyrighted work in a data base even when the data base contains mostly public domain works.
From another pedestal, even if we concede to the fact that copyright law is meant o serve as an incentive for original speech, there is still a deficit in this reasoning. As pointed out by Professor Craig in her paper “Putting the Community in Communication: Dissolving the Conflict between Freedom of Expression and Copyright” a single original speech can be used to express a multiple original ideas depending on each author’s intention. If we place an article of faith on the concept of “originality” and its concomitant protection by copyright law, we will end up creating disincentive for further creative innovation and also burden free speech. Unfortunately, these are the goals of copyright law. On this basis, I am inclined to take a rare position that copyright law is a policy at war with itself if interpreted as a right existing in an independent system, and as such, should not be used to unnecessarily burden free speech.
I believe in Netanel’s view that to achieve a balance in copyright law and policy, efforts should be made to reduce the characterization of copyright as a private property right stricto sensu. As he points out, the scope, duration and character of copyright should be shaped to best further the goals of the First Amendment, namely, robust debate and expressive diversity. These are part of the principles upon which copyright policy rests. In the words of Professor Craig, copyright when defined in opposition to the social purposes of free expression, it loses its coherence, and hence, its legitimacy. If the private property rights conferred in the name of copyright contradict the values underlying free expression, they also work against the values that underlie copyright; the copyright system then fails on its own terms. If copyright is to be justifiable as a legitimate limitation that furthers the public interest in the creation and exchange of intellectual property products, then the characterization of copyright as private property is a significant obstacle to that end.” More so, the original speech which copyright law strenuously provides incentives for, could as well be served if individuals are allowed to freely express their views through original views. This is because in the process of using original thoughts, new thoughts and ideas may be created. In all, I think a careful balance should be struck between the natural and inalienable right to free speech and the artificial creation of property right in expression of speech through the instrumentality of copyright law. However, from a constitutional dimension, free speech appears to have preeminence over and above any regulation that purports to impede it.
In accord with Netanel’s campaign for the protection of freedom of expression in the copyright system, and in order to exemplify the way in which freedom of expression has come into conflict with copyright, as both bloggers describe above, this blogger offers Rochelle Cooper Dreyfuss. In her article, ‘Expressive Genericity: Trademarks as Language in the Pepsi Generation,’ Dreyfuss outlines the case of the United States Olympic Committee grant over the word ‘Olympic,’ which she argues puts the public’s ability to use the word in jeopardy. The idea that Dreyfuss purports is that if courts continue to permit trademark owners to extend their control then a framework for protecting core expressive interests will need to be developed. To understand core expressive interests the author first discusses the ‘signalling’ function of trademarks; which are identifiers of, say, the manufacturer of toy, like Mattel to Barbie. The expressive function of trademarks are the employment of meanings associated with trademarks that are different than the meanings invoked by the trademark owners; such as referring to someone as a Barbie doll and meaning an empty headed accessory. It is in the hybridization cases of these functions through which the author introduces the idea of ‘expressive genericity.’ The concept here is that trademarks which are used not by the owners, and used commercially, but not as a signal, are permitted under the rubric of fair use. It is helpful here to think of the trademark as one which has become competitively generic. In returning to the case of the United States Olympic Committee grant on the word ‘Olympic’ the author describes the issue of who should reap the benefit of the surplus value accrued in these hybridized or dual usage cases of trademark. In the case at hand the courts argued that since the United States Olympic Committee created the market for the word ‘Olympic’ it should, through its own efforts, have a property right to the word; and thus San Francisco Arts and Athletics Inc. were denied use of the title ‘Gay Olympics’ for their international athletics competition. The court further claimed that the grant of exclusive control was to ensure that the United States Olympic Committee had incentive to continue to produce ‘quality product.’ This example of the ‘if value, then right’ theory means that if investment is dispositive of trademark owners right to control, then public ability to evoke the expressive dimensions of trademark are restricted. As we have seen in the blogs above, copyright may provide an incentive for speech, as in grant to the Olympic Committee. However it also restricts other speakers from conveying a message, such as those who wish to create alternative athletics competitions. In the case at hand the court held that the title ‘Gay Games’ was an adequate substitute to inform potential customers of the nature of the events, when in fact, the proposed title missed the deep historical meaning that could only be found in the word ‘Olympic,’ and, perhaps in suggesting such, imposed an unacceptable burden of speech.
When Neil Netanel indicates the need for a “balance designed to encourage original expression” he takes into account two interests in seek of an equilibrium: this is not necessarily a “conflict”.
I do not see as particularly helpful to stress the conflituous nature of the tension of two interests which are (in most countries) constitutionally protected. In each specific case, some balance should be drawn, and Netanel’s book would probably be best read with such purpose in mind.
Not being any copyright champion, I am as most Brazilians IP lawyers at this moment engaged in a very hot controversy in connection with the change in our copyright laws, as proposed by our Federal Government. After two years of nation-wide discussions, last week the Government draft was revealed, and curiously a rather moderate reaction ensued.
The issue I am directed to is not exactly free expression, but the germane constitutional interest of the right to access. In our constitutional system, Human Rights Treaties recently acquired Constitutional status, and therefore the UN Pact on Social & other Rights was built up to such level; art. 15 of the Pact, reproducing the content of art 27 of the 1948 Declaration, was thus incorporated as a fundamental right to access to cultural goods.
In pursuance to such novel situation, the draft included three distinct causes of non-voluntary copyright licenses: besides the orphan-works issue already dealt with by Canadian law, we would have a right to publish works unreasonably withdrawn from the public by the right holder (for instance, out of print books needed by the public) and the right to reasonable access in cases of refusal to access (for instance, inheritors ransoning cultural essential works when looking for monopoly returns).
I am aware that those cases (the draft addresses to many other problems found in the exceedingly restrictive Brazilian law) are not the technical versus free access theme of Netanel’s book (or at least of Netanel’s book comment above). But the point is: there is no reason to stress the conflict, but plenty of motives to look for balance. And again, it could be argued that free expression is only a parcel of the larger issue of the right to access (once such right becomes law and not only a A2K theme).
But I wonder whether art. 15 of the UN pact has not been incorporated in a number of legal systems in a Constitutional or similar level, like we discovered recently in Brazil. This would broaden Netanel’s argument.
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