F(r)ee Expression

Now at the end of "Freedom to Read Week", and in the wake of a small argument I've been having with another blogger partially regarding our differing views on censorship, I'd like to relate a compelling essay I read this week which talks about the dichotomy that exists within freedom of expression and copyright.

Raymond Shih Ray Ku's essay entitled "F(r)ee Expression?" discusses the relationship between American copyright law and their First Amendment. While this piece deals exclusively with US law, many of the points are applicable to Canadian copyright law and our Human Rights Charter.

The scope of US copyright law has changed significantly in 200 years from, protecting publishers from unfair competition in the marketplace by other publishers with verbatim copies of the same works, to now including derived and abridged works, as well as non-commercial and private copying, as well of course the expanded term of copyright from an initial 14 years requiring registration to an amazing LIFE+70 or flat 95 years, requiring no registration at all.

Ku's argument is that, at every point in which the expanding scope of copyright has been challenged, courts have ruled that the embedded limits of copyright, namely the inability to protect ideas, and the US fair use doctrine were always necessarily sufficient to satisfy any First Amendment objections. The courts therefore have never actually undertaken a fair examination of copyright in the context of freedom of expression.

He compares this with what is known as Lochnerism, characterized by a period of time in US history when courts were wary to put limits on common law contracts. Laws which limited maximum working hours were "considered unconstitutional because they altered existing economic rights which were seen as natural."

Similarly now, with regard to copyright, the courts see the existing economic rights of copyright holders as the baseline, or test, by which future copyright laws should be judged.

What all this means of course is that as technology changes the law makers and the courts do what they can to maintain the economic interests of copyright holders, and use the embedded limits within copyright to hold off any First Amendment challenges. Freedom of expression is never adequately defended, and the stated purpose of copyright "to advance the arts" is never measured against the changes to the law.

In Canada, I'd argue that the process is much the same. Any changes to copyright must be examined explicitly with regard to how they effect freedom of expression, and the advancement of the arts. As there is no human right to remuneration, maintaining economic interests should not just be secondary, they should be wholly irrelevant to the process.

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What is unfair about verbatim copies?

I'd strongly consider reexamining whether verbatim copies were ever unfair competition.

Certainly, it is quite lucrative to be able to prevent competition, or to enjoy a monopoly, but what precisely is wrong with a free market in which competition is permitted?

It is only a feeble hypothesis that there would have been market failure in the absence of a monopoly such as copyright. It is unsurprising at how easy it was to obtain given both the state and the press were interested in obtaining control over the press, but that monopolies were greedily welcomed by the incumbents does not justify them or demonstrate their fairness.

I suspect that if copyright had never been enacted we would have seen rapid development of efficient mechanisms to facilitate collective patronage of public works.

Money voluntarily exchanged in a free market is a more ethical bargain than the exploitation of a compulsory suspension of liberty.