Copyright and Freedom of Expression in Historical Perspective

Journal of Intellectual Property Law Volume 10 Issue 2 Symposium: Articles in Honor of Professor L. Ray Patterson Article 8 March 2003 Copyright and Freedom of Expression in Historical Perspective Pamela Samuelson University of California, Berkeley Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Constitutional Law Commons, and the Intellectual Property Law Commons Recommended Citation Pamela Samuelson, Copyright and Freedom of Expression in Historical Perspective, 10 J. Intell. Prop. L. 319 (2003). Available at: https://digitalcommons.law.uga.edu/jipl/vol10/iss2/8 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Samuelson: Copyright and Freedom of Expression in Historical Perspective COPYRIGHT AND FREEDOM OF EXPRESSION IN HISTORICAL PERSPECTIVE Pamela Samuelson* I. THE MODERN VIEW OF COPYRIGHT AND FREE EXPRESSION Copyright and freedom of expression have often been viewed as harmonious and complementary concepts. In Harper& Row Publishers,Inc. v.Nation Enteprises, for example, the Supreme Court characterized copyright law as the "engine of free expression."' To hold a left-leaning news magazine liable for copyright infringement for publishing excerpts from Gerald Ford's forthcoming memoirs was not, in the Court's view, to condone an act of private censorship. It was consistent with First Amendment principles because copyright incentives would ensure that what Ford had to say about the Nixon pardon in his memoirs would reach the public through the normal operation of the marketplace.2 Copyright furthers democratic discourse by providing rights that enable independent writers and artists to make a living from their expression.3 L. Ray Patterson is among the scholars whose work explores copyright's important contributions to freedom of 4 expression in the modem era. * Chancellor's Professor of Information Management & Law, University of California at Berkeley. Earlier versions of this Articlewere presented at a Yale Law School symposium on Private Censorship, April 9-11, 1999, and at a conference on the Commodification of Information held at Haifa University in May of 1999. An earlier version was also published in COMMODIFICATION OF INFORMATION (Niva Elkin-Koren & Neil Netanel, eds., 2002) under the title "Copyright, Commodification, and Censorship: Past as Prologue-But to What Future?" The work of L Ray Patterson, to whom this Symposium is dedicated, heavily influenced this Article in all of its manifestations. The title of this Article echoes that of Patterson's excellent book COPYRIGHT IN HISTORICALPERSPECTIVE (1968). The author wishes to thankJames Boyle, Niva Elkin-Koren, and Neil Netanel for their encouragement and Eddan Katz for his valuable research assistance. Research support for this Article was provided by NSF Grant No. SES 9979852. 1 471 U.S. 539, 558 (1985). 2 Two principal facts that cut against the fair use defense were, first, that The Nation attempted to "scoop" publication of Ford's memoirs by publishing excerpts about the Nixon pardon and, second, that the manuscript from which the Nation's editors drew these excerpts was allegedly "purloined." Id at 562-64. - See, e.g., Neil W. Netanel, CopyrightandaDemocraticCivilSociey, 106 YALE L.J. 283 (1996); Niva Elkin-Koren, Cyberlaw and Social Change: A DemocraticApproach to Copyight Law in Cberspace, 14 CARDOZO ARTS & ENT. L.J. 215 (1996). SSee L. Ray Patterson, Free Speech, Copyrightand FairUse, 40 VAND. L. REV. 1 (1987). See also sources cited infra notes 5-17. Published by Digital Commons @ Georgia Law, 2003 1 Journal of Intellectual Property Law, Vol. 10, Iss. 2 [2003], Art. 8 J. IN'TELL PROP.L [Vol. 10:319 In the mainstream view, harmony between copyright and the First Amendment exists because copyright protection extends only to an author's "expression," not to the "ideas" or information the work may contain.' Other authors are always free to express the same ideas or reuse information derived from a protected work in a subsequent work as long as he or she expresses the ideas or information in a different way.6 This principle substantially limits the potential for private censorship in copyright. Fair use has been a second copyright doctrine contributing to the compatibility of copyright and the First Amendment.7 For example, when secretive billionaire Howard Hughes acquired the copyright in a magazine article about his life and tried to use the copyright to stop publication of an unauthorized biography, an appellate court rebuffed the effort to use this copyright to accomplish an act of private censorship by finding that the biographer had made fair use of the article.' Similarly, Acuff-Rose Music, copyright owner of the popular song "Pretty Woman," tried to stop a rap music group, Two Live Crew, from selling a rap parody version of this song. The Supreme Court viewed the parody as an exemplification of critical commentary that the fair use doctrine should permit.9 In these and other cases, courts have invoked fair use to prevent the exercise of copyright as a means of censoring content of which the copyright owner disapproved."0 Fair use and the idea/expression distinction have sometimes failed to preserve as much harmony between copyright and free expression principles as society deems desirable. In the aftermath of the Supreme Court's Harper&Row decision, 5 See, e.g., Melville B. Nimmer, Does CopyightAbridgethe FirstAmendment GuaranteeofFree Speech andFreePress?,17 UCLA L. REv. 1180,1186-89 (1970). Nimmer also regarded the limited duration of copyright as important to the consistency of copyright and the first amendment. Id at 1193. 6 The idea/expression "merger" doctrine also accommodates First Amendment principles. When there is effectively only one or a small number of ways of expressing an idea, courts are likely to view the "idea" in a work as having "merged" with its "expression," precluding copyright protection for the expression in order not to protect the work's ideas. See, e.g., Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967) (granting summary judgment because of the limited number of ways to express sweepstakes rules). 7 See, e.g., Paul Goldstein, Copyright and the FirstAmendment, 70 COLUM. L. REv. 983, 1011-15, 1017-22 (1970); Patterson, supra note 4, at 36-48. See alro Robert C. Denicola, Copyright and Free Speech: ConrtitutionalL 'mitationson the Protection ofExpression, 67 CAL. L. REv. 283 (1979). For a recent affirmation of the importance of the fair use doctrine in harmonizing copyright with First Amendment principles, see Eldred v. Ashcroft, 123 S. Ct. 769 (2003). See Rosemont Enter. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966). 9 See Campbe (...truncated)