Copyrighting Speech: A Trans-Atlantic View

Abstract

Copyright law is in some tension with the principle of freedom of expression. This paper compares the official American and European attitudes towards the argument that there is a conflict between the two legal areas, and that it is important to examine it closely. Noting the almost religious power of the First Amendment in the United States, and the almost religious power of moral rights in some Continental countries, we would expect free speech to be taken into consideration when copyright law is discussed in the United States, and less so in the European case. Surprisingly, American courts tend to deny the conflict and limit their discussion to the internal sphere of copyright law. They argue that copyright is the engine of free speech. There is an emerging approach in European courts: they are more willing to examine a conflict.

This paper offers a distinction between an internal view of the argument, that there is a conflict between copyright law and free speech, and an external view. It then ascribes the internal view to the American approach, and explains it on the background of the utilitarian rationale of copyright law. The European view is internal only in a mechanical way, and the emerging approach is external, and is the result of the proprietary view of copyright. The paper then argues for an approach that would be more consistent with the best understanding of copyright law on either side of the pond, more consistent with constitutional values and interpretive theory.

Keywords: copyright law, freedom of expression, free speech, european law