The Myth of Copyright's Fair Use Doctrine as a Protector of Free Speech

Abstract

This article debunks the myth that the fair use doctrine exists to protect the freedom of speech within copyright. Using the history of fair use in the courts and in Congress, as well as recent case law, the Article demonstrates that fair use is not, and never has been, intended or designed to restrain copyright in the face of the First Amendment. The conflict between copyright and free speech could be lessened by reforming the balance of interests within fair use to eliminate the focus on commercial use and to expand the understanding of the broader public-benefit purpose underlying the Supreme Court's analysis of transformative uses. This broadening of what constitutes a "fair" purpose and character of a use would create an opportunity for judicial balancing of the interests promoted by both copyright and the First Amendment.

Keywords: copyright, fair use, First Amendment, free speech