“Exclusive Rights” and the Constitution
WE HAVE TRIED to make it clear that a central focus of our inquiry in this book is on the limitations imposed on expression by the concept and practice of exclusivity under current intellectual property regimes— regimes that routinely forbid appropriation of expressive works in the absence of a license. We have suggested (in company with many others) that these limitations have led to a conflict between the regimes and the Constitution, a conflict in multiple dimensions, in which interests in property are pitted against freedom of expression. In the first three chapters of our book we have examined the regimes themselves. Now we turn our attention toward a more deliberate examination of the regimes from within the perspective offered by the Constitution, and ask why it is that a conflict as obvious as the one we have been discussing has not yet been the subject of more deliberate efforts by Congress and the courts to resolve it? In this setting, we think it will be useful if we elaborate a bit on our earlier effort to set the limits of our understanding and discussion of expression. Here again, we employ the term “expression” conventionally, but also as a synonym for those aspects of speech and press that are within the province of the First Amendment.
We do not accept for the purposes of this book the distinction that sometimes has been drawn between speech and press under that amendment. Specifically, we reject the notion that either interest is superior or inferior to (or greater or lesser, or more or less important than) the other. Whatever may be said of such notions in other settings, we think they have never been made the basis of settled law, and we do not accept them here.1 Instead we treat both speech and press as complementary equivalents, in the nature of fraternal twins, embracing a continuum of expression that begins with imagination and thought, and that may (though it need not always) end in some publication or disclosure going