1.Introduction Copyright and freedom of expression have an intricate relationship that is both reciprocally supportive and potentially conflicting with one another. In this complex relationship where both copyright and freedom of expression are ‘constellations of rights and interests’, whether copyright’s interference with freedom of expression is justified hinges on the question: does copyright in fact interfere with freedom of expression? To begin with, I will explore the role and justifications underpinning each right.
Following on from that, by examining the relevant authorities and literature on this relationship, I will contend that copyright does in fact conflict with freedom of expression. However, this conflict is not so much a conflict where one overrides the other, but rather a compromise. This conclusion will be based on the core principles underlying the concept of copyright and the internal mechanisms of copyright law. Additionally, I will also explore the possible justifications for copyright interfering with freedom of expression in the event that an alternate view is adopted – where copyright and freedom of expression are in conflict, such that copyright interferes with freedom of expression.
2.The role of copyright and freedom of expression in society Copyright at its core is rooted in two objectives; the first being linked to the entrepreneurial side where an author has exclusive rights to make copies and reproduce their own work, and the second being the protection of the author now that their work is available to be copied. Therefore, copyright plays a role in protecting privacy. It protects the privacy of authors by affording them with exclusive rights that prevent unauthorised publication of unpublished and thus private material. At the same time, copyright also functions to protect freedom of expression by serving as an incentive for the production of expressions that might otherwise be produced, and by ensuring the integrity of published expressions. Thus, copyright provides an additional value benefit above and beyond what would be created without copyright. Even strong free-speech-oriented critics of copyright law, such as Neil Netanel, have yielded to the fact that there must at least be some form of legal protection otherwise valuable works would not be produced.
Freedom of expression is used to indicate not only freedom of verbal speech, but any act of seeking, receiving and imparting information or ideas, regardless of the medium used. Commentators have asserted that there are four main liberal justifications for freedom of expression. The first of these involves the production of truth where the free exchange of ideas allows for a free market of ideas most conducive to truth and advancement of knowledge. The second role that freedom of expression plays is the enhancement of democracy.
By ensuring that citizens can be politically informed, free speech allows for the expression of diverse political opinions which is a key function of democracy. The third argument is based on moral autonomy where it is believed that freedom of expression both reflects and promotes the right of individuals to make their own moral choices. This has also been referred to as freedom of expression’s ‘intrinsic value as a fundamental individual right that is constitutive of what it is to respect each individual equally.’ The final justification for freedom of expression comes from self-development. It is based on the claim that expression is central to being a human, and thus freedom of expression promotes individual self-development.
3.Copyright vs. Freedom of Expression? There has been much commentary and debate as to whether copyright interferes or conflicts with the freedom of expression. This has resulted in two predominant positions being endorsed by commentators and courts. The predominant view taken by the courts has been that copyright is a fundamentally beneficial ‘engine for free expression’ because it provides incentive for the creation of works. Copyright and freedom of expression have both resultantly been seen as promoting speech. At the other end of the spectrum lies the view that ‘copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.’ Those adopting this view thus see copyright as interfering with freedom of expression. However, the reasons behind this negative view have weak foundations.
3.1 Copyright promotes Freedom of Expression As stated earlier, copyright is designed to simultaneously promote production of original material and maximise its access while also protecting the rights of authors of unpublished material to withhold access. Freedom of expression was also underpinned by the importance that unconstrained rights to expression provided for moral autonomy, self-development, democracy and the discovery of truth. However, while this may promote self-development of users, this unrestrained copying may interfere with autonomy and self-development of the authors of the expression. Accordingly, David Lindsay contends that amongst copyright law’s constellation of rights and interests, freedom of expression can be regarded as an internal value that is part of this constellation. This was echoed by the US Supreme Court in Harper & Row where freedom of expression was seen as having a paradoxical value protecting an author’s right to refrain from publication – which is the same right that copyright attempts to protect. Therefore, copyright promotes the same (albeit countervailing) value that freedom of expression endeavours to protect.
Additionally, the predominant position taken up by most courts around the world is that the internal mechanisms provided by the respective copyright statutes establishes an appropriate balance between the constellation of interests and rights within copyright and freedom of expression. Particular mention was made of the idea-expression dichotomy and the specific exceptions provided for in copyright legislations.
The idea-expression dichotomy refers to copyright law only protecting the specific language, structure, images, or details of plot and character in a creative work (that is, expression), while not protecting facts or ideas. This dichotomy is seen as a means of protecting the free speech rights of originators and users. In line with the argument for self-development, as copyright does not protect ideas, there is no substantive interference with your freedom to develop and communicate your ideas, perceptions and insights about the world. Therefore, the law of copyright promotes the development of an individual because it forces him or her to express themselves in their own individual and unique way – that is, formulating and expressing your own thoughts. Furthermore, the idea-expression dichotomy protects free speech rights of users by enabling second-comers to clothe the ideas of an originator in a different form of expression.
Fair dealing or fair use exceptions are exceptions created by the Legislature allowing the copying, quoting and publishing of parts of a copyright work for the purposes of ‘research or study’, ‘criticism or review’, ‘parody or satire’, ‘reporting news’. Unlike the US fair-dealing provision which is an open-ended exception, the Australian and UK exceptions are confined to the particular purposes identified by the respective copyright legislations. Additionally, once a use falls under one of the exceptions, the courts must determine whether the use is fair in light of the factors like the worthiness of the purpose and its effect on the copyright owner.
Fair use has been acknowledged by leading commentators as being core to the way that US copyright accommodates, via its internal rules, concerns with freedom of expression. According to the decisions in Ashdown, Harper and John Fairfax, fair use is close to the heart of free expression. If copyright owners could control – and effectively ban – every quotation or other use of their work, they would exercise a powerful form of censorship. Therefore the internal mechanisms of copyright law provide considerable protection to the values and justifications of freedom of expression.
3.2 Copyright antithetical to Freedom of Expression? Despite the various courts and commentators asserting that copyright law promotes the values of freedom of expression, there has naturally been an argument that copyright is antithetical to freedom of expression. Notwithstanding the idea-expression dichotomy, the Court in Ashdown accepted that freedom of expression does at times require that the defendant be able to copy the precise form of a work, albeit only in ‘rare’ or ‘very rare’ circumstances. Furthermore, a work may have many meanings and these meanings are produced by society at large as much as by the author. It has been said that the danger with copyright is that the author may attempt to prevent or restrict the development of more critical readings, or readings that have resonance for historically disadvantaged groups.
While it has been stated that the idea-expression dichotomy establishes an acceptable compromise, there may be material that renders the distinction lacking in balancing copyright and free expression. This may occur when the form might be so closely intertwined with the content of the work that distinguishing the idea from the expression would render the idea or content incomplete or inaccurate. If understanding a particular idea requires a particular form, then the idea-expression dichotomy forces users to incur a significant loss of meaning and a diminution in the value of the works content. For instance, Nimmer states that the power of visual materials lies essential in the form or expression, rather than the underlying idea(s). Thus a visual image is indistinguishable from its expression. Nevertheless, Alexandra Couto points out that this argument is only true in relation to art.
Couto argues that artwork is the only form that does not require the artist to be fully aware of the full meaning of his own expression for users to appreciate. However, most other expressions such as speech, are only protected by freedom of expression if it has some self-conscious expression, that is expressing himself. Furthermore, Couto asserts that the argument a ‘new expression’ distorts the original meaning of the copyrighted material has a thin foundation. He contends that this argument overlooks the fact the reproduction of copyrighted material is made for the purpose of the individual’s free expression. Notwithstanding an inaccurate translation of the copyrighted work, a definitive component of freedom of expression is the free interpretation of the work.
Additionally, it has been noted that the freedom of expression rights have generally not been sufficiently taken into account in the court’s discretionary exercise of determining whether a use is far. Where the rights have been taken into account, courts have applied an insufficiently rigorous analysis. The problem stems from the indeterminate nature and unpredictability of the discretionary process. By putting freedom of expression rights as paramount over other discretionary factors may open the floodgates of litigation. Also, risk-averse publishers may begin to avoid utilising copyright material for fear of litigation. If expressive rights of users and the general public are interpreted broadly at the expense of originators, this may begin to erode the rights of originators as there may develop a general impression that uncompensated use is the norm. Nevertheless, by setting up a clear guidelilne on the determinative process of when rights to freedom of expression conflict with other and interests will undoubtedly solve many of these problems. And if so, when free speech rights should prevail.
While there have been various arguments attempting to establish the antithetical nature of copyright against freedom of expression, these have been shown to fail on various grounds. Furthermore, while the courts in the US and UK have acknowledged that copyright law may lead to suppression of speech, the internal mechanisms in the copyright law alleviate the harshness of these restrictions and generally strike an appropriate balance. As such, it may be safe to take the view that while copyright law is no longer ‘the engine for freedom of expression’, it is still not ‘antithetical’ to free expression.
4.The Superior Right In the event that copyright conflicts with the values of free expression such that it interferes with freedom of expression, we will now look at whether there is any justification for one right to override another. We will, however, begin by viewing the philosophical justification(s) for copyright before comparing the right of copyright and the right to freedom of expression.
4.1 Copyright as a natural right Under a English Lockean view, ‘individual ownership of goods and property is justified by the labour exerted to produce those goods or utilise property to produce goods beneficial to human society’. It has been stated that a long-standing justification for copyright is that it is a reward for creative labour. In justifying copyright as a natural right under the Lockean tradition, Justin Hughes treated the idea-expression dichotomy same as an idea-execution dichotomy. Since ‘execution always seems to involve labour’, this meant that copyright was a property right and thus a natural right. Therefore, copyright law, being an integral part of intellectual property law, is a kind of property. This is how copyright law has been justified in the US. Alternatively, under a continental Kantian tradition, copyright has been recognised as the personality of the author. Australia and the UK would therefore view copyright as a personality right. This position regards copyrightable works to be extensions of the author’s personality. The author is given certain powers to control those works on account of his or her connection to them.
Though there have been strong arguments for copyright being a natural right, there have been equally strong arguments asserting that copyright is in fact not an absolute right, nor is it necessarily a natural right. It has even been argued that it may be implausible to argue copyright and freedom of expression are absolute rights – for an absolute right confers a right that cannot be overridden or infringed. Alternatively, it has been argued that any natural right justifications have been eclipsed by the economic justification which sees copyright as supplying a necessary incentive for creativity. Consequently, today’s copyright law ‘is the product of competing world-views, changes in the understanding of creative production, and economic and political forces.’
4.2 Determining the superior right While I have demonstrated that copyright does not interfere with freedom of expression, we shall look at whether copyright has any solid justification for interfering with freedom of expression. The answer to this question will ultimately lie in which right is superior. If the rights and values in freedom of value are superior to those in copyright, then any interference by copyright cannot be justified.