Copyright and Free Speech Comparative and International Analyses

by Griffiths, Jonathan; Suthersanen, Uma

• ISBN13: 9780199276042
• ISBN10: 0199276048
• Format: Hardcover
• Copyright: 2005-06-16
• Publisher: Oxford University Press

Summary

Written by a team of leading scholars and practitioners, this book analyzes the potential for interaction and conflict between copyright and free speech. Recent examples include the series of First Amendment challenges that have been brought against the US Digital Millennium Copyright Act and Ashdown v. Telegraph Group in the UK. The analysis draws upon a wide variety of viewpoints and jurisdictions to provide a sustained study of the subject suitable for use by both practitioners and academics.

Author Biography

Jonathan Griffiths is a qualified solicitor and from 1993 to 2000 he was employed as a lecturer and senior lecturer at Nottingham Law School, Nottingham Trent University. He joined the Department of Law at Queen Mary, University of London, in January 2001. His research interests are in the areas of intellectual property (particularly copyright law), and media and information law. Uma Suthersanen is a Senior Lecturer and Senior Fellow at Queen Mary, University of London. She is an Executive Committee Member of the Association Litteraire et Artistique Internationale, Executive Committee Member of the British Literary and Artistic Copyright Association, and a Committee Member of the Legal Advisory Committee of the British Computer Society.

Table of Contents

List of Contributors	xxi
Tables of Cases	xxvii
Tables of National Primary and Secondary Legislation	xxxvii
Table of International Instruments	xliii
List of Abbreviations	xlvii
1. Introduction
A. Mapping the Conflict
B. National and International Perspectives
C. The Digital World
D. Conclusion
I MAPPING THE CONFLICT
2. Copyright and Free Speech Theory
A. Introduction
B. Conventional Explanations for the Copyright-Free Speech Divide
C. Are Copyright Infringements Covered by Freedom of Speech?
D. Four General Arguments of Free Speech Theory
(1) Free speech confers rights on speakers as well as on recipients and the public
(2) Freedom of speech concerns the form of speech as well as its contents
(3) The speaker's motive does not generally matter
(4) Scrutiny of legislation intended to promote speech
E. Conclusion: Some Reflections on Balancing Free Speech and Copyright
3. Commodification and Cultural Ownership
A. Introduction
B. Freedom of Speech and Copyright
C. Copyright and Commodification
D. Commodification and Private Power
(1) Global rights, global distribution, global dominance
(2) The role of technology
(3) The exponentiality of power
E. Private Power and Freedom of Speech
(1) Control over the scope and nature of cultural expression
(2) Loss of the commons
(3) Copyright's answer?
F. And?
4. Copyright Norms and the Problem of Private Censorship
A. First Amendment Protection for Free Speech
B. Is There Shelter for the Necessary Freedom to Borrow in the Idea-Expression Dichotomy?
C. Identifying Relevant Principles and Policies
(1) Maximizing social welfare
(2) Authors' rights
D. Safeguarding Hostile Uses from Suppression: A Search for Converging Policies
(1) The economics of suppression
(2) Authors' rights and suppression
(3) Reference to analogues in the common law
E. Conclusion
5. Towards an International Public Interest Rule? Human Rights and International Copyright Law
A. Contextualizing Technology and Knowledge as a Human Rights Issue
B. Justifying Copyright within an Economic-Human Rights Framework
(1) Utilitarian approach
(2) Natural rights: individual values and property
(3) Natural rights: collective values and 'intellectual' property
C. Mapping our Values and Interests
(1) Interpretation rules
(2) Human rights: from citizenry values to corporate values
(3) Copyright: from the 1886 author to the 1996 entrepreneur
(4) Developing an international balance: public interest
D. The 'Human Rights-Copyright-Public Interest' Nexus
(1) Corporate responsibility
(2) Copyright-related obligations under international instruments
(3) Disparate copyright interests
(4) Extrinsic and intrinsic control
(5) A public interest rule
II NATIONAL AND INTERNATIONAL PERSPECTIVES
6. Copyright and the First Amendment: What Eldred Misses-And Portends
A. Introduction
B. The Supreme Court Speaks: Eldred v Ashcroft
(1) Background
(2) The Eldred petitioners' First Amendment argument
(3) The Supreme Court's ruling
C. First Amendment Intervention after Eldred
(1) Altering the traditional contours of copyright protection
(2) Copyright's traditional free speech safeguards
D. Conclusion
7. Copyright, the Public Interest, and Freedom of Speech: A UK Copyright Lawyer's Perspective
A. Contrasting Approaches to Copyright
B. Protecting Authors: The 'Three-Step Test'
C. Strengthening Users' Rights
D. Expansion of the Scope of the US S 107 'Fair Use' Defence
E. Fair Use and the Three-Step Test
F. External Controls: The Common Law 'Public Interest' Defence
G. From Public Interest to Freedom of Expression: The US Constitutional Relationship between Copyright and Freedom of Expression
H. Copyright and Freedom of Expression in the United Kingdom and Europe: The Human Rights Act and Article 10 of the European Convention
I. Conclusions
(1) Fair use, fair dealing, and the three-step test
(2) Remedies
8. The Impact of the Human Rights Act 1998 on UK Copyright Law
A. Copyright and Freedom of Expression in the United Kingdom
(1) Ideas or mere information v expression
(2) Substantial part
(3) Fair dealing
(4) Public interest
(5) Denial of an injunction
B. Does the Human Rights Act Engage UK Copyright Law?
C. Is the CDPA 1988 in Conflict with the Article 10 Right?
D. How is the Accommodation to be Made?
(1) An adjustment of what has conventionally been the boundary of fair dealing
(2) Discretionary refusal of injunction
(3) Public interest defence
(4) Human Rights Act 1998, s 12
E. Application of the Ashdown Ruling
F. Pre-Ashdown Decisions
(1) Fraser v Evans
(2) Hubbard v Vosper
(3) Beloff v Pressdam
(4) Lion Laboratories Ltd v Evans
(5) Hyde Park Residence Ltd v Yelland
(6) Imutran Ltd v Uncaged Campaigns Ltd
G. Conclusions
9. Not Such a 'Timid Thing': The UK's Integrity Right and Freedom of Expression
A. Introduction
B. The UK's Integrity Right
(1) The statutory provision
(2) Case law on the integrity right
(3) Commentary on the integrity right
C. Not Such a 'Timid Thing': The Wind Done Gone in the United Kingdom
(1) Absence of statutory defence founded on freedom of expression
(2) Comparison with other jurisdictions
(3) An example of the potential impact of the integrity right on freedom of expression
D. Is it Possible to Interpret Section 80 in a Manner that Minimizes Unjustified Interference with Freedom of Expression?
(1) Defences
(2) Interpreting the scope of s 80
E. Conclusion
10. Canadian Copyright Law and Its Charters
A. Copyright Law and the Federal Charter
(1) Crown copyright material
(2) Fair dealing
B. Copyright Law and the Quebec Charter
(1) Right to one's likeness
(2) Right of privacy
11. Copyright and Freedom of Political Communication in Australia
A. Introduction
B. Australia's Constitutional Framework and the Development of the Implied Freedom
C. The Operation of the Freedom
(1) Freedom not a right
(2) Mode of communication
(3) Type of protected communication
(4) The level of protection
(5) Summation
D. The Implied Freedom and Copyright Protection in Australia
(1) Overview of copyright in Australia
(2) Copyright's collision with freedom of communication
E. Options for the High Court
(1) Introduction
(2) Reinterpreting the fair dealing provisions
F. Conclusion
12. Freedom of Expression and Copyright under Civil Law: Of Balance, Adaptation, and Access
A. The European and International Legal Framework
(1) Freedom of expression and limits in favour of the 'rights of others'
(2) Copyright and built-in limits in favour of freedom of expression
B. Articulating and Balancing Copyright and Free Speech Concerns
(1) Copyright law and the control of derivative uses: parody cases
(2) Copyright law and control of access
C. Conclusion: Is Freedom of Expression the Lifebuoy for Bona Fide Users Drowning in a Sea of Intellectual Property?
(1) Different levels of scrutiny and the content-neutrality factor
(2) Free expression and free culture
13. Copyright and Free Speech in Transition: The Russian Experience
A. Introduction
B. Authorship and Individual Rights in Transitional Countries: The Russian Example
C. The Soviet Experience of Copyright
(1) Copyright and the public interest: expropriation
(2) Authors versus publishers: a socialist copyright
(3) Authors versus the State: freedom of thought and expression
(4) Freedom of speech and international copyright: State control
D. Copyright and Free Expression after Communism
(1) The author's right as an individual right
(2) The importance of moral rights for free creative expression
(3) The public interest in culture and heritage
(4) A new knowledge regime
E. Conclusion: A New International Model
III THE DIGITAL WORLD
14. First Amendment Speech and the Digital Millennium Copyright Act: A Proper Marriage
A. Introduction
B. The DMCA and Innovation Policy
(1) Innovation and law
(2) What does the DMCA actually do?
C. First Amendment Issues
(1) First Amendment issues generally
(2) Is the subject matter protected speech?
(3) Content neutrality, function, and regulation
D. Standards Applied
(1) Permitted content-neutral regulation
(2) Actual circumvention and fair use
(3) Trafficking rules and the First Amendment
E. Conclusion
15. Contracting Out of Copyright in the Information Society: The Impact on Freedom of Expression
A. Introduction
B. Loosening the Grip of Copyright
C. Tightening the Grip of Copyright
D. The Impact on Freedom of Expression
E. Normative Analysis of the Impact of Contracting Out of Copyright on Freedom of Expression
F. Some Conclusions
16. Databases, the Human Rights Act and EU Law
A. Where Is the Historical Introduction?
B. The Subject That Does Not Exist
C. Four Laws, Three Interlinking Disciplines
D. Database Rights: What Are They?
E. Do the Origins of Database Right Teach Us about Their Present Nature?
F. Freedom of Expression under the ECHR
G. Other ECHR Provisions Which Address Freedom of Expression
H. Database Right and Freedom of Access to Information
I. What Does the Drafting of European Database Right Law Tell Us about Human Rights?
J. Can Article 10 Justify the Appropriation of a Commercial Database by a Competitor of the Database's Owner?
K. Can a Restriction on Even Obtaining Data for the Creation of a Database Breach Article 10?
L. The Imutran Case: What Does It Teach Us about Freedom of Expression and Database Right?
M. The Competition Law Dimension
N. Closing Comments
Index	419