New Guide to Free Speech and Intellectual Property
One of the more vexing constitutional conundrums is how to reconcile the right to free speech with the notion of intellectual property. Article I, Section 8 of the Constitution gives Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” But the First Amendment proclaims that “Congress shall make no law…abridging the freedom of speech, or of the press.” By legislating, as the Constitution gives it the power to do, that an author has exclusive use of his or her words, Congress is, of course, abridging freedom of speech in some sense. Writers other than the copyright-holder are not allowed to use, at will, words that are “owned” by another.
This tension has produced some compromises over the years. For instance, Congress limits the term during which authors are entitled to copyright protection, although the length of that protection, largely because of the successful lobbying efforts of large media companies, has in recent decades gotten longer and longer. Also, media folk are given some limited First Amendment protections when they quote brief phrases or passages of a longer work – the commentator’s so-called “fair use doctrine” exception to the author’s copyright protection.
All of this is the subject of ongoing commentary by scholars, authors, and legal practitioners. Thankfully, The Citizen Media Law Project has set out to distill some of this useful information into one easy-to-read source, geared toward a lay audience. Read more about this ambitious and laudable effort here.
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