Copyright and the Speech Right: Are They in Conflict?

It remains a popular talking point among copyright skeptics to say that copyright limits free speech.  When this refrain was played a little over a week ago on Twitter by ReCreate’s Joshua Lamel, I responded that those who keep saying it are “hair-splitting to the point of pedantry.”  Lamel replied with the assertion that everyone agrees with this trope—all copyright scholars across the spectrum of views, the ACLU, and the American Framers.  Responding to that allegation in order, there are definitely copyright scholars (I know some personally) who do not subscribe to the copyright-limits-speech premise; it is not worth anyone’s time to excavate what the ACLU allegedly thinks about this topic; and the Framers said nothing of the kind.

In fact, the Constitution’s authors leave behind a record so thin on the subject of intellectual property that one can hardly support any generalization beyond the clear, if broad, intent of the “IP clause” in Article I.  More specifically, it is absurd to engage in a 21st century debate about the relationship between copyright and the speech right by alluding to what the Framers allegedly thought during the Constitutional Convention—five years before the Bill of Rights was even ratified.  

What the Framers mostly thought during those tense, sweaty days in Philadelphia was “Holy shit, I hope this works,” meaning the Republic itself.  That many of those men also dreamed that the new nation might one day produce great authors and inventors is evident in the record, but the contours of copyright law, especially as we know them today, would only come to exist in a future the Founding Fathers could not possibly imagine.  This does not overlook the fact that the speech and press rights in particular were ratified with a clear understanding that our fragile democracy requires a literate, informed, and engaged electorate; and this fundamental principle certainly implicates a need to access works of authorship. 

But if we are going to talk about copyright and free speech, it is only sensible to have that discussion in context to the current law (the 1976 Copyright Act) and to contemporary speech rights doctrine, which is far more liberal than the Framers could have foreseen—or many would have thought prudent.  It took lot of time and struggle, well into the 20thcentury, for the rights enumerated in the First Amendment to apply to all Americans; and it is worth noting that, for instance, long before a woman could avail herself of those rights as a full citizen, she could own copyrights in works of authorship.  So, perhaps copyright and speech are more historically intertwined than the critics like to portray.  

The copyright-limits-speech theme persists because we generally agree that any limit on speech is bad, and thanks largely to the existence of internet platforms, many people subscribe to a very expansive definition of speech.  It is only in the last two years that many have begun to see the folly in defining all online conduct as a form of speech, let alone protected speech.  And while that is a very big topic on its own, it is necessary to consider, whenever someone identifies a limit on speech, exactly how expansively he or she defines speech.  With that in mind, what does copyright actually protect?

The copyright act vests three general types of rights in the author:  the right to make copies of a work; the right to make derivative works based on an original work; and four different means by which works can be made available to the public. 

§106(1) – The Reproduction Right

The right to copy, known generally as the “reproduction” right, is the oldest protection under copyright; and in order to argue that restricting verbatim copying of a whole work is a limit on free speech, one must embrace a concept of speech so broad that it encompasses plagiarism or outright piracy.  In what example could such conduct be considered speech, let alone protected or meaningful speech?  If I were to type out the entirety of Toni Morrison’s The Bluest Eye and put my name on it, you can bet that “copyright infringer” would be the least of the pejoratives I would justifiably be called.  

Long before the existence of modern copyright law, we have a cultural tradition of recognizing an ethical code which demands that a speaker either present some measure of originality in his speech; or that he make a limited use, with attribution, of the works of a prior speaker.  If breaking this rule can get a student kicked out of college without abridging speech rights, how does granting authors the right of “reproduction” chill those rights?  In this context, copying is cheating, and cheating is not speech.

Alternatively, if I were to print 10,000 bootleg copies of Morrison’s novel and sell them out of my car, this could only be an exercise in speech if the State were to ban the book and systematically destroy other copies?  There are those who say that unlicensed copying (piracy) expands access to works, and that this is a form of expanding the purpose of speech.  But in addition to the fact that the speech right does not extend to a right of free access to all content, this circular reasoning also presumes the existence of works without vesting copyright in authors in the first place.  

§106(2) – The Derivative Works Right

It does seem, at least anecdotally, that many examples cited by those who believe that copyright limits speech tend to implicate the derivative works right.  I suppose one is free to opine that the author should not be granted the exclusive right to license spin-offs, sequels, translations, merchandise, etc., but I doubt this view would be popular as a matter of fairness, and guarantee it would vary dramatically according to circumstance.  Suppose, for instance, that White Supremacist Dude tried to publish a sequel to the aforementioned The Bluest Eye … 

Many reasonable people would be quite justifiably outraged if a court held that WSD’s speech right to publish a story about the great-granddaughter of Cholly Breedlove supersedes the right of the Morrison estate to prohibit this derivative work.  Yes, I am being provocative on purpose by including the element of race, but only to emphasize the original point that to call this prohibition a limit on White Dude’s speech right would almost certainly be an exercise in pedantry.  

Yes, as a quibbling matter, some amount of WSD’s speech would be proscribed; but what would in fact be limited by copyright would be his ability to both capitalize upon, and revise, the speech of Toni Morrison.  To come to the opposite conclusion would potentially amount to coerced speech if Morrison’s estate were forced to tolerate a use of her inventions in a form anathema to their meaning or purpose.  And copyright still cannot stop WSD from his right to evangelize racism by way of criticizing Morrison’s literature, if he were so inclined.

But what about thoughtful, respectful, or meaningful derivatives that may not be licensed?  In fact, there was a real litigation involving a kind of reverse example of the one I just invented.  When the case settled in 2002, Alice Randall’s novel Wind Done Gone was advancing a pretty solid claim as a parodic fair use—rather than an infringing derivative work—of Gone With the Wind.  In Randall’s favor was the fact that she commented upon Mitchell’s too-idyllic portrayal of slavery in her famous, mythmaking story.  So, limits like fair use, which are baked into the copyright law, do promote the progress of creative expression and free speech.

In response to the generalization that copyright limits speech, I would counter that copyright law often helps to separate the meaningful speaker from the lazy, crass opportunist or plagiarist.  The important point here is that such distinctions are always nuanced and can only be considered on a case-by-case basis.  For instance, one consideration in Randall’s favor is the historic setting of Gone With the Wind and the cultural influence of that particuar book as a kind of revisionist history, despite its being a work of fiction.  All of those factors would not be present in my hypothetical derivative work of The Bluest Eye.  

§106(3)(4)(5)(6) Making Works Available

The individual statutes here relate to the mechanisms by which different types of work can be made available.  I will not enumerate all four, but for instance, a stage play can be distributed in book form (§106(3)), and it can be performed on stage or as filmed public performance (§106(4)).  This bundle of rights can be thought of as the wholesale end of copyright, protecting the author’s right to enter into agreements to make her work available through various channels.

How protecting the exclusivity of those distribution channels is a limit on speech rights is a mystery.  Few reasonable people would support the idea, for example, that if a teleplay author licenses her series exclusively to Netflix that this infringes the speech rights of other parties who might want to perform the show via their platforms or networks.  Show me an accused infringer of making available rights, and I’ll show you a vested interest looking to exploit a work without paying for it—not someone exercising the speech right.

‘twas ever thus.  In the days leading up to the 1909 Copyright Act, the newspaper publishers tried (and failed) to argue before Congress that they should not have to pay to publish photographs, despite the fact that photographic works were protected by copyright.  Users of resources, especially commercial users, would rather not pay for materials if they can avoid it.  Today, it will be some tech company vying to exploit music, video, images, books, etc. without paying license fees, often cobbling together some convoluted legal defense to bob and weave through the copyright statutes; but those particulars aside, these users are no more speakers than a guy selling a trunk load of stolen whiskey is a distiller.  

If you saw the movie Yesterday, you’ll know that the tension for the protagonist hinges on the fact that, although he can get away with performing Beatles songs as though they are his own expressions, he feels like a thief.  In other words, even if we remove the copyright component, the ethical underpinnings of its boundaries remain.  And so does the speech right.

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