Copyright, Intellectual Property

The First Amendment And Copyright Law: Can’t We All Just Get Along?

Fair use is copyright's “safety valve” for the First Amendment.

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There’s been a lot of debate about the First Amendment recently. For example, should there be an exception to the First Amendment for hate speech? Some discussions have revolved around potential conflicts between various amendments. What is the relationship between the First Amendment and the Equal Protection Clause of the Fourteenth? What is the relationship between the First and Second Amendments? These are all issues that have been discussed and debated recently, but what about the First Amendment and copyright law?

The First Amendment, of course, protects our right to freedom of speech and expression. The First Amendment clearly states that “Congress shall make no law… abridging the freedom of speech, or of the press.”

Copyright, which is also grounded in the Constitution, gives the rightholder an exclusive legal right over his work, allowing him to restrict access to it, prevent others from using or reproducing it. If this were all there was to copyright law, a rightholder could certainly use his exclusive rights to block criticism and discussion, stifling free speech. Without proper safeguards, copyright law could conflict with the right to freedom of speech by giving the rightholder censorship rights.

For example, a blogger on gender equity might try to make a point about the portrayal of women in audiovisual media. Without the ability to use a clip from a film or music video, the writer would be less effective in illustrating her point. Without quoting dialogue or lyrics, we would just have to take the blogger’s word for it that a particular genre, movie or song is misogynistic.

Imagine what would happen if exclusive rights to copyright protection actually did conflict with, and trumped, the right to freedom of speech? Would journalists effectively be able to report on political speeches without fear of an infringement lawsuit? As my criminal law professor said on a daily basis, words have meaning. Paraphrasing and summarizing what someone has said may not adequately get the point across. Exactly what did President Trump say about the violence in Charlottesville? The phrase “on many sides” was plastered across news headlines for days

How do we deal with the potential tensions between the First Amendment and copyright protection?

Ultimately, there are fewer tensions between the copyright law and the First Amendment than one might think, particularly when we look to the purpose of both. While copyright gives the rightholder a “limited time” monopoly, the purpose of the intellectual property system, grounded in the Constitution, is “to promote the progress of science and useful arts.” Thus, its purpose — even as it grants monopoly rights — is to benefit the public.

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The goals of the First Amendment are not as clearly laid out within the text itself, but have been the subject of extensive discussion. Of course, one goal is to protect our democracy by allowing an exchange of ideas through unconstrained speech. Access to a range of opinions and views helps inform policy positions of government officials and voters deciding for whom they should cast their ballots, as well as ideally enabling the search for truth. Access to information and freedom of expression not only protects democratic ideals, but is also essential to art and culture.

Ultimately, copyright and freedom of speech promote the same goals, seeking to further the public interest through creation and dissemination of speech, expression, and works. Indeed, the Supreme Court confirmed in Twentieth Century Music v. Aiken,

The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

When we see that they serve the same purpose, albeit through different means, we can seek to resolve any potential tensions by looking to see whether that purpose is being served.

While copyright provides an author exclusive rights and could be used as a censorship tool, it also includes a number of limitations and exceptions, the most significant one being fair use. The fair use doctrine has a long common law history, with the first United States case decided in favor of the user in 1841. Eventually, this doctrine was codified in the 1976 Copyright Act and allows a user to use existing works without permission, under certain circumstances and for various purposes including, for example, criticism, comment, new reporting, teaching, research, and scholarship and aids in ensuring that copyright serves the public good.

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Justice Ginsburg called the fair use doctrine a “built-in free speech safeguard.” It prevents the right holder from possessing unlimited freedom to control all uses of their works and is indeed a “safety valve” for the First Amendment.

In looking at copyright infringement cases, fair use plays a vital role in protecting the First Amendment and furthering political discourse, among other purposes. While fair use has been used for a variety of purposes, from allowing the creation of searchable databases to permitting parodies to documentary film uses, it has a special place in furthering access to information and promoting political discourse.

During the election last year, a 2005 conversation with Billy Bush of Access Hollywood came to light, a tape of Trump bragging about sexual assault. Had news articles simply covered the story describing Trump’s conduct as vulgar or even stating that Trump bragged that he could sexually assault women, people would still have been critical. But the actual quotes from the tape were horrifying:

You know I’m automatically attracted to beautiful— I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it, you can do anything.

Grab them by the p****, you can do anything

There’s a big difference between a description of what Trump said and actually reading (or hearing) the specific language used. Fair use allows quotation, which in turn allows more accurate discussion and better debates. Without fair use, copyright law might effectively censor speech and harm the goals of the First Amendment. Fortunately, fair use provides a bridge between copyright law and the First Amendment, allowing both to advance access to information.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at [email protected].

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