Vanderbilt Law Review

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The copyright clause provides that "[the Congress shall have Power... To promote the Progress of Science. ..by securing for limited Times to Authors .. .the exclusive Right to their . . .writings ...."I The first amendment provides that "Congress shall make no law. . .abridging the freedom of speech, or of the press ."..."

Three modern developments portend a conflict between these two clauses of the Constitution: (1) the emergence of the doctrine that free speech encompasses the right to have access to, as well as the right to disseminate, ideas; (2) the elimination of the requirement of publication, which historically ensured the right of access,as a condition for statutory copyright; and (3) the codification of the fair use doctrine, traditionally relied on to avoid conflict between copyright and free speech, in a way that inhibits the right of consumer access to copyrighted material.

The felt need to accommodate copyright to new communications technology caused Congress in the 1976 Copyright Act to eliminate publication as the quid pro quo for copyright. The new statute thereby created problems of access not present with the paradigm of statutory copyright-printed material that is published.' A part of the pattern that emerged in the 1976 Act was a codified fair use doctrine, which presumably had become necessary for the partial fulfillment of the constitutional purpose of copyright--the promotion of learning--because of the elimination of publication, the traditional means of ensuring access (a sine qua non of learning), as a condition of copyright. If indeed the codified fair use doctrine was intended to promote access, however, it has fallen far short of its mark. For fair use as codified has served to enlarge the copyright monopoly by giving copyright owners a basis for increasing their control of access to copyrighted works. And if,as modern doctrine tells us, the right of free speech encompasses the right to hear as well as to speak, to read as well as to publish, it is obvious that Congress made these fundamental changes in copy-right law with little regard for their effect on free speech rights.The wisdom of the Constitution's framers in making the copyright clause a limitation on, as well as a grant of, congressional power was ignored, and the long latent conflict between copyright and free speech rights has emerged to become a reality.

The notion that there is a conflict between two provisions of the Constitution--the copyright and free speech clauses--is anathema to the judicial mind. Consequently, courts have consistently and almost without exception rejected the free speech defense in copyright infringement actions. Equally unacceptable to the courts is the notion that the first amendment creates an exception to statutory copyright. Courts are correct on the latter point.They err, however, by assuming that the first amendment is the sole source of free speech rights and by ignoring the free speech values in the copyright clause. My thesis is that the copyright clause limits the power of Congress to grant copyright because item bodies free speech constraints. The failure of lawmakers, legislative and judicial, to recognize this limitation results in part from the confused and confusing concept of copyright, a concept that has both a proprietary and regulatory basis. While courts have tended to view copyright as primarily proprietary in nature," Congress has treated it as regulatory.