Introduction
In a landmark case, the judges concluded that for the success of a modern liberal nation, there must be a constitutional protection that ensures that the constitution promotes free expression “by establishing a marketable right to the use of one's expression, copyright supplies and the economic incentive to create and disseminate ideas”. Thus, by implication, copyright is supposed to be “an engine of free expression”.
The purpose of this paper is to analyse the accuracy of the claim that copyright is an engine of free expression. The paper will critically assess the original position taken on copyright by the founding fathers of modern liberal democracies of countries with the English-legal tradition. It will examine how these positions have changed over the years and how modern trends in society has changed the view on copyright as an engine of free expression.
The Statute of Anne was instituted in 1709 in England and that became the first copyright law in the British Commonwealth and the United States. The statute allowed publishers to refuse to make their work available unless the reproduction of the copies could be limited at least for a period of time. This process was to prevent free riders from undermining the market of books and paintings. This way, there could be a system of ensuring that people could be protected from negative abuse and misuse of their resources and works.
The notable exception to the copyright rules of the 1709 Statute of Anne was what was classified as “public goods”. These were things in public domain that could be replicated without limit. However, in situations where people produced something from their own volution and ability, that means they had to be protected. This way, people could invest time and ensure they give off their best and be protected in order to make economic gains from the works they do. Thus, through the original copyright Act, the authors have exclusive rights to the use of their materials and the attainment of the best results.
There are three different reasons why the Common Law position of copyright law was instituted. These three pointers are meant to make copyright the engine of free expression including:
1. Production Function: Provide an economic incentive for the creation and dissemination of original expressions;
2. Structural Function: Support a sector's authors and publishers to look at the market and not government patronage for financial sustenance and this limits government's influence on each industry;
3. Expressive Function: Reinforces the social and political importance of individuals' new original contributions to public discourse.
The expressive function is important and vital because it reinforces the social and political importance of the individuals’ new original contributions to public discourse. This is because a modern democratic country whether Australia or the United States is a constitutional democracy which has power vested in the citizens. The citizens choose leaders and run the government through officials they elect. Censorship and control by the government leads to corruptions. Therefore, the government is kept under check when there is copyright. This is because in the absence of copyright, there is elite patronage and this leads to the control of the media. Thus, copyright gets people to stand up and contest things that are done against human rights and democracy. In Europe, the royal courts controlled everything – from philosophy to law. There was a lot of censorship in Europe in the Middle Ages. However, the best way to ensure that free speech and democracy can be safeguarded is through the ability of independent writers to sustain themselves financially. This way, people can concentrate on writing and analysing information in order to promote free speech and expression.
Thus, as long as the market pays for authors and creatives, there is a protection of the rights to work amongst such persons. The use of copyright law expands and makes the field of public communication richer and broader.
Therefore, it can be said that freedom of expression and freedom of the press can be guaranteed through the privatisation of work and performances. And privatisation can be guaranteed through the ability to earn a living and make money as and when the need arises. This causes the procedure to work for the best interest of the public and promote free expression of information. Through this process, there has been the emergence of liberal writers who have challenge perceptions and promoted better views and ideas on things. This has contributed to the advancement of society in England, America, Australia and all over the world.
Constraints in the Common Law Approach to Copyright
However, in today’s world, there are some realities that make it difficult to stick to the common law position on copyright law. This is because copyright laws as they exist are not sufficient in dealing with issues and problems. There is so much financial greed that has caused massive replications which the existing copyright laws cannot really limit in a significant manner.
Also, technology creates a major challenge and difficult for the implementation of copyright laws. This makes it difficult to justify copyright law as an engine for free speech. It seem to be hindering free speech rather than liberating it and enhancing it. The original understanding for copyright law is to promote economic and market-oriented goals in society. However, in today’s world, people can blatantly go against the spirit of copyright laws without any issues.
The fundamental premise for breaching copyright law without real consequences is in the view that copyright law is limited in enforcing distribution rights. Witten et al identify that copyright law covers four types of rights namely:
1. Reproduction rights – allow authors to control the reproduction of their works;
2. Distribution rights – a one-time right which lapses after one distribution after which the copyright holder loses power over the distribution of his or her work;
3. Public lending rights
4. Other rights – for example permitting or refusing public performance of work like adaptation for screening.
Point 2 above shows that the distribution rights are limited in the common law view of copyright laws. As such, people only need to buy one copy of a published work and they have the right to redistribute it with little limitation. These redistribution systems can be justified on the basis of the fact that it helps to promote free speech.
Some argue that copyright limits or inhibits free speech in the digital age of technology. This is because technology gives a lot of avenues through which information can be spread to different people at various points in time. This is because technology promotes free speech in a serious manner. And as such, when there are limits on technology, there is going to be a major problem and stifling of the procedure. This is because distribution rights are to be one-time and after that, information can be replicated easily.
Too much focus on copyright will inhibit the replication of information through technology. In the case of Eldred v Ashcroft it was argued that copyright was intended to promote the progress of arts, not stifle creativity to provide a monetary reward. Thus, people who are against the excessive expansion of copyright law to cover modern situations and scenarios argue that there must be the protection of the online environment and promote technology neutrality to ensure that freedom of speech is guaranteed.
Modernisation, Technology and Copyright Law as an Inhibitor of Free Speech
The 21st century has seen the revolution of the Internet and technology. Thus, there is the risk that common law application of copyright laws could inhibit the best interests of free speech. This is because free speech has to be carried out without any limitations in an area like the online environment.
Thus, some practical adjustments have been made. This include the fair-use clause which is used in most jurisdictions to limit the sharing of some elements and aspects of a published work in order to share information through an electronic platform or other media houses. However, this does not seem to be enough. Critics of copyright law state that copyright laws are not honouring the essence of protecting free speech in this technological age. Rather, they see copyright as something that will continue to hinder free speech if it does not stop.
“Now that technology enables us to rebuild the library of Alexandria, the law gets in the way. And it doesn't get in the way for any useful copyright purpose, for the purpose of copyright is to enable the commercial market that spreads culture. No, we are talking about culture after it has lived its commercial life. In this context, copyright is serving no purpose at all related to the spread of knowledge. In this context, copyright is not an engine of free expression. Copyright is a brake”.
This argument by Lessig indicate that copyright is counterproductive and does not promote free speech. Rather, it limits free speech and if nothing is done about it, classical copyright law would cause information flow to be severely halted. This is because technology is rebuilding culture and society. Technology is giving room for the creation of digital libraries that have the potential for a better society. However, copyright limits are too onerous and impractical. For instance, the lifetime of classical copyrights list throughout the lifetime of copyright owners and until 50 years after their death. It is at this point that a project passes into “public domain” and can be reproduced without permission from the owner or his estate.
Therefore, it is necessary to point out that copyright laws are onerous and do not really solve our problems now. Thus, there is the need for some kind of limits to be placed on copyright laws to ensure that society flourishes.
Another dimension for condemning copyright as counter-effort to free speech is that it is fuelled by commercial interests and corporate greed. Copyright is operated through the profit incentive and special interest groups who find ways of policing and limiting the free use of art and information.
Recommendations for Making Copyright more Relevant to Free Speech
Legislature must ensure the constitution is a living document, as such, it is necessary to enact laws that reflect the modern era and the circumstances within which copyright can thrive. Until then, it appears that copyright laws are a limit rather than supporter of free speech.
Thus, in order to deal with situations and circumstances, there is the need to ensure that the legal system stays true to technology neutrality and view things in a long-term public good rather than just over-protecting the copyright holder. This means that there must be the system of promoting better levels of communication and there must be a legal intervention that would ensure that the online environment and technological systems are of the best quality and level of response to the needs of people in society.
Another view is that the solution lies in tailoring copyright duration by medium of expression since this holds the potential to balance the interests of the public that wants access to works and the authors that are essential to creating them.. Therefore, society will have to find ways of limiting copyright levels and enhance the level of individual liberty in the democratic society as opposed to protecting the private interests of copyright holders.
Conclusion
This paper identifies that originally, copyright had the intent of protecting free speech in society. This includes the production function, structural function and expressive function. Through this, artists and authorities can do things and produce original materials without inhibition. However, in the 21st Century, the rise of technology means there is the need for people to gain access to information. In this context, copyright law inhibits free speech. Thus, there is the need to guarantee technology neutrality and balance the rights of copyright holders with the society’s needs. Thus copyright law has the intention of promoting free speech. But in modern times, it seem to inhibit free speech until some changes are made.
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Bibliography
Books
Lessig, Lawrence Free Culture: The Nature and Future of Creativity New York: Penguin Press 2015
Netanel, Neil Weinstock Copyright's Paradox London: Oxford University Press, 2015
Witten Ian, Bainbridge David & Nichols David How to Build a Digital Library Amsterdam: Morgan Kaufmann, 2013
Journals
Aistars Sandra, Hartline Devlin & Schultz Mark "Copyright Principles and Priorities to Foster a Creative Digital Marketplace" George Mason Legal Review 23 pp769 – 792 2016
Chamberlain, Craig “Tailoring Copyright Duration” Lewis & Clark Legal Review Vol 20 pp303-322 2016
McKeown, Margaret. "Censorship in theGuise of Authorship: Harmonizing Copyright and the First Amendment" Chicago-Kent Journal of Intellectual Property 1(1) pp1-14 2016
Smith, Rachel Marie, “Why Can't My Waiter Sing Happy Birthday: The Chilling Effect of Corporate Copyright Control” The Journal of the Franklin Pierce Centre for Intellectual Property 56 (3) pp399-448 2016
Cases
Eldred v Ashcroft [2003] 537 US 186
Harper & Row Publishers Inc v Nation Enterprises 471 U.S. 539, 558 (1985)
