Does (or Should) the First Amendment Trump Copyright?: Review Essay

I want to begin this review essay with a biographical note, because I am known through my writings and speeches mainly as a long-time defender of copyright, and thus it might appear that I bring to my review of this book a prejudicial perspective. But since childhood I have always felt strongly about the First Amendment, too, and wrote letters to the editor defending freedom of speech and freedom of the press when I was still a teenager. The tensions between copyright law and the First Amendment were brought home to me very vividly when I served in the mid-1980s on both the Copyright and the Freedom to Read Committees of the Association of American Publishers (AAP), which had long debates over the issues raised in the landmark Supreme Court case of Harper & Row v. Nation Enterprises (1985). So I did not begin reading this book with a bias in favour of intellectual property against the First Amendment. The authors' own bias in reverse, however, did make me more defensive about copyright than I might otherwise have been, I must admit.

The two senior law professors at Duke University who have written this book follow all the regular norms of scholarship but freely acknowledge that their work is 'polemical to a considerable degree,' proceeding as it does 'mainly from our a priori convictions' (xi). The basic premise of their argument is that the First Amendment trumps any law that restricts expression by conferring exclusive property rights, as copyright does. They accept Justice Hugo Black's dictum that 'no law' should interfere with freedom of expression. As they explain later, in chapter 11, they differ from Black mainly in regarding the First Amendment 'as a structural provision defining the scope of federal powers, and not . . . as a provision protecting individual liberty' (267), because they worry that the latter approach leaves the door open to considering the 'liberty interest' as one among a number of competing interests to be balanced by courts in the pursuit of the overall public good, which became the predominant judicial practice after it was pioneered by Justice Oliver Wendell Holmes in the early twentieth century.

Although the focus of the book is heavily on statutory copyright, the authors begin in chapter 1 by reviewing the judicial history of common law copyright, privacy and the right of publicity, trade secrets, and trademark law in relation to the jurisprudential development of the concepts of unfair competition and misappropriation to show how they all evolved in the direction of being recognized as involving some form of (quasi-)property right whereby a right of exclusivity came to be the basis for establishing the occurrence of misappropriation. In the case of trademarks, it was the idea that their use by others could 'dilute' their effectiveness that brought to mind its functioning as a type of property, whether or not any confusion in the marketplace occurred. The discussion here is subtle and sophisticated; it may be difficult for those not already steeped in the legal literature to follow all the twists and turns. The primary point about the dialectic of exclusivity and misappropriation, however, does come through clearly.

Chapter 2 compares copyright and patent law in order to illuminate both their substantial commonalities (such as their shared constitutional provenance) and their differences (such as what 'originality' means in each context). The authors speculate about what has driven copyright owners to be more aggressive in protecting their rights, and they provide a brief history of how 'fair use' came to be employed as an affirmative defence, how compulsory licensing developed, and how 'moral rights' are, or are not, recognized under US copyright law. They pay attention, finally, to the public domain as it has begun to...