Copyright as it has developed is essentially a private copyright for private communications made public for profit. Theoretically,the right to copyright is derived from the act of creation, and the choice of making his creations public is that of the author. As the copyright clause makes clear, the purpose of the private monopoly of copyright is to encourage the author to make his creations available for public learning. Television, on the other hand, is primarily a medium of public communication that has as a major function the transmission of public information to the public. To apply the present law of copyright to television, as opposed to copyrightable works that may be presented on television, would be to make the act of transmission, rather than the act of creation, the basis of copyright. Reports of news, public affairs, news conferences, public events, and other material now clearly in the public domain would become subject to the monopoly of copyright owned by a communications corporation merely because it transmitted the material to the public. Thus, copyright for television per se raises serious questions about the potential conflict between the free speech and free press clause of the first amendment and the copyright clause.
Lyman R. Patterson,
Private Copyright and Public Communication: Free Speech Endangered,
28 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol28/iss6/1