The First Amendment And Copyright Law: Can’t We All Just Get Along? | Above the Law
broad scope of protection given to copyrighted television characters im- pinges on its . sidered the relationship between freedom of speech and state libel law. What is the relationship between the First Amendment and the The First Amendment, of course, protects our right to freedom of speech and expression. of the intellectual property system, grounded in the Constitution, is “to. The relationship between copyright and freedom of expression has long been debated. analyzing the scope of European intellectual property law, one should not limit constitutional protection of intellectual property rights.
The third factor asks how much the new work takes from the copyrighted material.
If the new work has harmed the market for the older work, a court will be less likely to find fair use. The Supreme Court examined the fair-use defense in this case.
Copyright & the First Amendment
However, that year the Nation magazine acquired a copy of former President Gerald R. The Autobiography of Gerald R. The Nation published its article before Time had published anything. The magazine also contended that its copying of portions of the memoirs was essential to its news reporting about the upcoming book. But we believe the Second Circuit gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest.
Parodies present difficult copyright cases because a parody by its nature copies material from a previous work. Courts ask whether a new work adds something new, or transforms, the prior work. In other words, the courts determine whether the parody is transformative. Acuff-Rose sued Campbell and his record company for copyright infringement. Campbell countered that his parody was fair use. A federal district court judge agreed with this argument, writing: However, on May 25,a three-judge panel of the 11th U.
Circuit Court of Appeals overturned the injunction, writing: An elusive doctrine Even though 2 Live Crew and Alice Randall at the preliminary injunction stage prevailed in the federal courts, both cases required extensive litigation. Courts will decide the application of the fair-use doctrine on a case-by-case basis.
The concept of fair use is flexible and hard to define. A recent federal court decision explains: Others think about the regulation of hate speech on the Internet. But some experts believe the greatest danger to free speech on the Internet comes from copyright. The cost of copying has come way down as technology has improved. Many involved in intellectual-property issues, particularly owners of content, feared and still fear that the Internet would lead to widespread copying.
They pushed Congress to enact legislation that would restore greater control to copyright owners. This push eventually led to the adoption of the Digital Millennium Copyright Act of This federal law makes it a crime to write and sell devices or software to circumvent a copyright-management system. Critics charge that the DMCA radically alters the balance of copyright law between content owners and the general public by giving too much control to copyright owners. They argue that the anti-circumvention provisions block competition and the development of new technology.
For example, they cite the rise of piracy in the use of peer-to-peer software like Napster that facilitates copying of material. For example, Lawrence Lessig writes: We are not entering a time when copyright is more threatened than it is in real space.
We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg. Or a certain space for individual freedom?
Intellectual Property and the Constitution
DVDs contain copies of the motion pictures in digital form. The studios protect these motion pictures from copying with a technology-protection encryption system called Content Scrambling System CSS. DeCSS enables people to play DVDs on their players and computers even if their players lack the licensed decryption technology.
Eight movie studios sued several of these Web site operators, claiming that their posting of DeCSS software violated provisions of the Digital Millennium Copyright Act. Section a 2 of the Copyright Act provides that: Defendants also argued that their posting of the DeCSS software should qualify as fair use.
The judge recognized that the DMCA limits the ability to make fair use of copyrighted material. Congress, however, clearly faced up to and dealt with this question in enacting the DMCA.
Hence, there is a potential tension between the use of such access control measures and fair use.
The defendants also argued that issuing a court order to stop the posting of speech DeCSS would amount to an unconstitutional prior restraint on speech.
Circuit Court of Appeals. The defendants make many arguments on appeal, including: DeCSS is truthful speech on a matter of public importance that cannot be suppressed unless the government meets the highest constitutional standard of strict scrutiny. The injunction is overbroad because it bans all publication and even linking to DeCSS. Napster allowed individuals to locate and share these MP3 files across the Net through its MusicShare software.
Many record companies sued Napster, alleging that the company facilitated widespread piracy of its copyrightable material. The record companies asked a federal judge to issue an injunction prohibiting Napster from operating until the lawsuit was resolved. The district judge sided with the record companies.
On appeal, the 9th U.
Intellectual Property and the Constitution | CIP - The Anton Mostert Chair of Intellectual Property
In copyright law, there can be no contributory infringement without direct infringement by another. Napster argued that many of its consumers were fair users because they were merely space-shifting when a customer copies songs she already owns onto a more portable media and sampling testing the music to decide whether to purchase it.
Given the wide acceptance of the Universal Declaration and the International Covenant together in addition with the International Covenant on Civil and Political Rights, as being the embodiment of fundamental human rights it can be argued that the right to hold intellectual property rights, and more particularly copyright, is a universally accepted fundamental right.
When called upon to adjudicate upon the validity of the South African Constitution as part of the process of its adoption, and in particular upon the question of whether it provided for all universally acceptable fundamental rights, freedoms and civil liberties in the Bill of Rights as it was mandated to dothe Constitutional Court — in the Certification case — held that the right to hold intellectual property was not universally accepted as a fundamental right and therefore did not require to be recognised in the Bill of Rights.
The inclusion of sub-section 4 b appears to have been something of an afterthought as a catchall to include property in general within its ambit. No doubt the Constitutional Court had this provision in mind when it said that section 25 covered intellectual property.
On this premise, the protection granted to intellectual property by the section is of a very limited ambit and is confined essentially to preventing the taking away of existing property. It places no obligation on the state to continue facilitating the creation of intellectual property in the future.
The scope of the protection, such as it is, is rather unsatisfactory. The fact that property is intangible does not make it of a lower order. Judicial recognition was thus extended to the proposition that trade marks and other intellectual property rights, including copyright, constitute property for the purposes of section 25 of the Constitution. This principle has given rise to a claim that the statutory prohibition of the use of a registered trade mark would amount to depriving the proprietor of that registered trade mark of an item of property as contemplated in section 25 of the Constitution and that the legislation in question would be invalid.
The Copyright Act must be interpreted in such a way that it is least destructive of free-expression rights. On the contrary all indications or pointers point or lead to the appropriation on an intellectual property asset belonging to the plaintiff, not for purposes of parody or lampooning or for other social purposes, but instead for no other purpose other than to generate commercial gain for itself.
It held that such a defence did not avail the appellant and held that trade mark infringement had taken place. The Constitutional Court criticised this approach and said that the right of freedom of speech was not a defence which excused infringement but was rather a consideration that should be taken into account when determining whether infringement had occurred at all. In adopting this approach it interpreted section 34 1 c of the Trade Marks Act in a Constitution friendly manner through the prism of the constitution and reached the conclusion that no infringement had been perpetrated.
It is submitted that this approach was all well and good in the case of trade mark infringement in terms of section 34 1 cwhich requires the court to decide whether conduct was unfair, and, thus, provided an opportunity for equitable considerations to be taken into account and a value judgment to be made.
What, however, is the position where the criterion for infringement of a right is a purely logical deduction and does not inherently provide an opportunity for a weighing up of contrary interests for instance, in the context of trade mark infringement, the unauthorised use of a mark identical to a registered mark in relation to the goods for which that mark is registered? How should such a provision be interpreted so that it is consistent with the Constitution?