Conflict Between Copyright and Free Speech

The Copyright Clause of the U.S. Constitution empowers Congress “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.” The First Amendment, on the other hand, limit’s Congress’ power, forbidding it from making laws “abridging the freedom of speech, or of the press.” The inherent conflict between copyright and free speech rights can be described as one between competing property and liberty interests. Both copyright and freedom of expression are codified in the Constitution, and therefore both represent fundamental values in the United States policy. The question then becomes, when they are in direct conflict, which right should trump? Historically, freedom of expression has been viewed as the cornerstone to a democratic society, and courts have worked to protect this right to the fullest extent possible. For this reason, some scholars argue that the First Amendment should win out over copyright where the rights conflict. The Supreme Court, on the other hand, has traditionally avoided the issue of direct conflict altogether.

As recently as 2002, the U.S. Supreme Court has held that the Copyright Act does not violate the First Amendment, and should not be evaluated under the First Amendment framework. (Eldred v. Ashcroft, 537 U.S. 186 (2002).) The Court’s position is based on two factors. First, the Copyright Clause and First Amendment were adopted close in time. It would follow that the Framers must necessarily have considered copyright and free expression compatible. In Harper and Row, Publishers v. Nation Enterprises, the Supreme Court explained, “the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” 471 U.S. 539 (1985). Second, the copyright scheme incorporates its own safeguards for protecting speech interests. Copyright law protects the expression of ideas, but not the ideas themselves, from use. The idea/expression dichotomy strikes a balance between copyright and First Amendment interests, in that it protects specific expression, while permitting free communication of the underlying facts. As stated by Justice Brennan, “copyright laws are not restrictions on freedom of speech as copyright protects only form of expression and not the ideas expressed.” Additionally, the Court stated that where copying of expression is necessary for commentary or critique, the fair use doctrine provided considerable latitude.

Despite the Court’s argument that copyright law doesn’t conflict with the First Amendment, many scholars point out that the Court has never clearly explained why it has not applied traditional First Amendment scrutiny in reaching this conclusion. The Commerce Clause, for example, empowers the government to regulate interstate commerce. Like the Copyright Clause, it too was enacted close in time with the First Amendment. Still, acts of Congress authorized by the Commerce Clause must meet heightened scrutiny when they impinge upon free speech rights. The problem may lie in the Court’s general approach to the issue. The Court attempts to answer the question of whether there should be a First Amendment exception to copyright law, rather than determining whether the Copyright Act, as applied, is itself unconstitutional. Were the Court to look at the problem as one primarily implicating the First Amendment rather than copyright concerns, some scholars argue that copyright law as it now stands would necessarily be found wanting. Assuming that copyright may be categorized as a content-neutral neutral restriction on speech, whether its impact on speech is incidental, a requirement under the First Amendment, is questionable. It is doubtful too that the impact on First Amendment freedoms could be deemed “no greater than is essential.”