Copyright to me has always meant the ability to speak one’s mind and have that speech protected under the law, but some suggest copyright actually chills free speech. This is odd, because anyone can read or otherwise experience another’s expression, and anyone can comment on that expression, criticize it, or even satirize it. Fair use ensures those things.

Free speech is one of our Seven Principles here at the Copyright Alliance. It celebrates the First Amendment, which I personally celebrate, as both freedom of speech and freedom of the press allowed me employment for most of my professional career. Our principle on free speech also quotes the famous line by Supreme Court Justice Sandra Day O’Connor in the 1985 Harper and Row decision that copyright was meant by the Founding Fathers to be an “engine for free expression.”

A book I just read by Pulitzer Prize winner Paul Starr – “The Creation of the Media: Political Origins of Modern Communications” — provides some more insight on the connection between copyright, the Founding Fathers, and free speech.

The story begins with the Statute of Anne in 1710 in Great Britain that extended copyright to publishers and authors. Prior to that, guilds had controlled publishing through government-granted licenses. This process ensured that (1) there were few widely distributed voices, and (2) that they were unlikely to openly criticize their government, the issuer of licenses.

Starr points out that shifting to a copyright regime opened anyone up to publishing, largely freed them from the fear of being shut down, and provided some assurance that they could get an economic return on their work. By 1712, there were twenty newspapers publishing in London every week, Starr writes.

Starr notes, as others have, that our Founding Fathers took guidance on copyright from the Statute of Anne and British common law. Market entry to publishing was even easier in the colonies, as there was no guild tradition to discourage competition, licenses or not. He also notes, as have I, that John Locke and the classical liberalism he represented was a strong influencer of the Founding Fathers on property rights, including copyright.

Before the Constitution was even written, twelve of the thirteen states under the Articles of Confederation had enacted copyright laws (Congress did not then have the authority to do so, it was given that authority in Article I, Section 8, Clause 8 of the Constitution, although in 1783 it encouraged states to enact such laws). Just as 16th Century Venice had created a copyright system for visual works, Rhode Island in 1783 produced a copyright for songwriters (the U.S. as a whole did not add that until 1831).

Sometimes, when those concerned with copyright discuss free speech, they are actually promoting a commons, where creative works aren’t owned. They refer to the public domain, and public ownership. But Starr notes there is ambiguity in the word “public.”

In one sense, public is to private as open is to closed, as when we speak of making something public. In another sense, public is to private as the whole is to the part… The term “public sphere” combines both senses when conceived (as it will be here) as the sphere of openly accessible information and communication about matters of general social concern.

In other words, copyrighted works are part of a greater whole that includes the public domain. They are also communication about matters (artistic or news) but while the expression is owned the subject matter is not, and in fact is part of the openly accessible information that we all enjoy as a society.

Copyright promotes free speech, and copyright is part of a larger public sphere. These ideas cannot be conveyed enough.

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This entry was posted on Thursday, March 19th, 2009 at 2:07 pm by Patrick Ross and is filed under copyright opponents, fair use, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.