Gutenberg's Legacy: Copyright, Censorship, and Religious Pluralism

Abstract:     
In this article, I argue that some recent developments in copyright law threaten to assist religious groups in using copyright law as a tool for suppressing what they view as heresy; and that this return to the seventeenth-century model of copyright as a tool of censorship is contrary to both sound copyright policy and, more importantly, the constitutional vision of religious pluralism.

I begin with a discussion of some problems that can arise with respect to the copyrightability of religious works. Although the Establishment Clause poses no obstacle to the copyright status of these works, there are some interesting copyright issues that arise with respect to works that religious groups view as scriptural or revelatory in character. I argue that the way in which courts in some recent cases have addressed the copyright issues betrays an unwillingness to take seriously minority religious beliefs; and that a thoughtful application of the copyright estoppel and merger doctrines would result in some of these works falling outside the scope of copyright protection. In the latter half of the article, I discuss the courts' responsibility to accommodate the unauthorized use of copyrighted works for the purpose of religious practice. Although religious adherents are probably not entitled to an exemption from copyright liability under current Free Exercise jurisprudence, I argue that courts should be somewhat more willing to accommodate unauthorized uses of religious works under copyright's fair use doctrine. On the other hand, the one provision of the Copyright Act that expressly grants religious users a broad exemption from the copyright owner's public performance right arguably goes too far in permissively accommodating religious practice.

Keywords: Copyright, fair use, religion, free exercise, establishment

Working Paper Series