Joseph P. Bauer


The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright Laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no Law... abridging the freedom of speech or of the press, " thus at least nominally indicating that limitations on the reproduction and distribution of works-including the works of others-aref orbidden. Courts, including the U.S. Supreme Court in Eldred v. Ashicroft, have stated that these two regimes can be reconciled in large part by some mechanisms internal to the copyright system, and in particular the fair use doctrine and the denial of copyright protection to facts and ideas. Yet, the rejection of these two defenses in a number of prominent copyright infringement actions, and the resulting unavailability of unconstrained access to important materials, illustrates that, on occasion, broader application of First Amendment protection is necessary. This Article first explores the history, goals, and values of these two regimes. It concludes that not only has First Amendment protection been denied in important cases, but this denial has likely had a chilling effect in many other instances, in which socially valuable uses of copyrighted materials have been voluntarily forsaken for fear of litigation. The Article then offers a test for greater unconstrained access to otherwise protected works. First Amendment interests should prevail: when there is a strong public interest in allowing the unauthorized use of protectable expression; when the speaker has a compelling need to use the expression itself, i.e., when paraphrasing, describing, or summarizing the work is inadequate to meet the speaker's needs; and when there is no reasonable alternative available to obtain consent to that use.



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