Copyright Norms and the Problem of Private Censorship

Copyright policy must resolve intelligently the tension between upstream and downstream creators, between incentives to create and incentives to use. Downstream at1thors who copy and transform others\u27 images or words as an input to new creativity have. obvious free speech concerns. So do simple copiers in those many instances where even non-creative copying is essential for expressing one\u27s ideas or allegiances. Part of the tension is economic. Because virtually every author :needs access to predecessor texts, a legislature that increases copyright protection for ·today\u27s creators simultaneously increases tomorrow\u27s costs of creation 1 or use. But the issue goes far beyond mere pricing and output. All exclusive rights impose restraints on the behaviour of fellow citizens.2 This is true not only of rights enforceable by injunction; the law typically enforces even rights to receive money, such as compulsory licence provisions,3 by criminal sanctions and the courts\u27 contempt power, leading at the extreme to imprisonment for users who refuse to pay. Therefore, like all privately-held . rights, copyright empowers a private person4 (including juridical persons such as corporations) to impose restraints on liberty. Moreover, since copyright subsists in work of expression, it has great potential for restraining liberties of speech. In particular, copyright can empower a private party to censor criticism or ridicule to which his works might otherwise be subject, or to limit how copies of his work are used. Criticism often needs to replicate part of its target\u27s content in order to illustrate for the audience the flaws perceived. If copyright is too strong, however, the law can strip the critic of his or her ability to reproduce crucial evidence. 5 Similarly, people need symbols and texts that they mutually recognize, and for copyright to deprive the public of the ability to use symbols in the contexts they prefer can distort their ability to inform and reform culture in which they live. 6 The question is how the law should reply to such attempts at private censorship. In the USA, the federal Constitution emp~wers Congress \u27To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings arid Discoveries\u27. 7 The Constitution also, in its First Amendment, invalidates laws that restrain free speech.8 The question then becomes how the Amendment limits either Congress\u27s power to enact copyright legislation, or courts\u27 interpretation and implementation of the legislation. If that Amendment is · unavailable, then the focus needs to shift to what other protections the law contains for free speech. This chapter will address the First Amendment issue first, and then explore alternative avenues for shelter