Copyright Infringement as Compelled Speech

Abstract

This paper offers a rights-based account of copyright law providing an expansive conception of the public domain. Its central proposition is that a "work" subject to copyright is a communicative act. This proposition grounds two further propositions. The first is that, because a work subject to copyright is a communicative act, infringement of the right attendant on the work is best grasped as a disposing of another's speech in the absence of her authorization. Copyright infringement is wrongful because it is compelled speech. The paper develops this view of copyright infringement through analyses of the doctrine of originality and the defence of independent creation; the distinction between copyright and patent protection as developed in the landmark U.S. Supreme Court decision in Baker v. Selden; and the wrongfulness of unauthorized publication of unpublished works. In this vein, the paper considers the distinction between a privacy focus and a copyright focus on unauthorized publication. The second proposition is that, because a work is a communicative act, rights attendant on it must (a) be confined to specifically communicative uses of the work, and (b) be consistent with the communicative rights of others, even - or especially - where such rights require unauthorized reproduction of a work for the purposes of responding to its author's communication. Copyright doctrine protects not an author's absolute rights over her work but only such rights as are consistent with nature of the work as speech and with the structure of the dialogue of which the work is but a part. The concept of the work as a communicative act thus traverses both the justification and the limitation of copyright. The paper concludes with some remarks on the implications of this construal of copyright law for our understanding of the public domain in particular and of copyright law generally. As distinct from a policy-driven incentive-based account, a rights-based account can help us broach the significance of copyright law as an effort to organize normatively an irreducible aspect of human interaction.

Keywords: copyright, rights-based, work of authorship, rights-based, speech, Kant, originality, independent creation, Baker v. Selden, unpublished works, fair use, transformative use, public domain