Copyright Zealotry in a Digital
World: Can Freedom of Speech
Robin D. Gross
In Article I, Section 8, Clause 8, the U.S. Constitution sets out the purpose of copyright law, “to promote Progress of Science and useful Arts.” The United States Supreme Court has made clear that the immediate effect of our copyright law is to secure a fair return for an author's creative labor. But its ultimate aim in providing this incentive is to stimulate artistic activity for the general public good. The original purpose of copyright under U.S. law was to provide an economic incentive for artists to create, thus ultimately benefiting the public. The Framers designed copyright not as a primary right but as a means to disseminate information in a time when the only way for information to spread was by attaching it to a medium like paper. Copyright law is designed to allocate a particular bundle of rights to the authors of works, but it reserves the remainder of rights to the public.
A basic premise of the U.S. intellectual property system is that the rights granted to creators as an incentive to produce creative works must be carefully balanced with the rights retained by the public. Hence, publishers and authors are not the only rights holders in the equation—members of the public are rights holders too under the copyright bargain. In exchange for the exclusive monopoly privilege granted to authors, the public is promised a rich and abundant public domain for all to use and share.
Fair use privileges are an important part of the public's side in the copyright bargain. The fair use doctrine acts as an intentional limitation on the author's right to control copying of a work. Fair use allows an individual to copy a work, in certain socially important circumstances—even when the copyright holder does not wish to allow such copying to occur. The Supreme Court has been clear that