Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It

56 Pages Posted: 25 Mar 2011

Date Written: March 23, 2004

Abstract

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay discusses the free speech value of pure copying, from audience interests to speaker interests in self-expression, persuasion, and affirmation of connection with a larger political, religious, or cultural group.

Keywords: copyright, first amendment, free speech, fair use, transformation

JEL Classification: K11, K19

Suggested Citation

Tushnet, Rebecca, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It (March 23, 2004). Yale Law Journal, Vol. 114, p. 535, 2004; Georgetown Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=1793181

Rebecca Tushnet (Contact Author)

Harvard Law School ( email )

Cambridge, MA
United States

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