Copyright v Free Speech

This essay will argue that copyright inhibits progress towards an enlightened culture by constructing a barrier to the spread of ideas. The assumptions that copyright acts as an incentive for people to create new material and the in-built protections of the law are sufficient to protect free speech result in little value being given to democratic acts which infringe on copyright. While practices such as file sharing resulted in internet piracy disrupting the business model of copyright holders, they arguably cause no harm; rather such acts benefit society through the dissemination of information. Yet, copyright law is progressively establishing a society where only those who can afford a fee will be able to access new information. Accordingly, the protection given to copyright material must also preserve incentives and opportunities for innovation and change in democratic societies.

Arguments that copyright law benefits democracy rely on the assumptions that copyright acts as an incentive for people to create new material, and the in-built protections of the law are sufficient to protect free speech. According to the Australian Copyright Council, copyright law seeks to protect the moral right of creators to be recognised for their work by allowing them to assign rights and grant licences to copyrighted material. At the same time, the fair use doctrine and special provisions made for libraries, educational institutions and government bodies, balance the rights granted under the law with the exercise of democratic free speech (Australian Copyright Council 2012). The Australian Copyright Council claims the opportunity for financial reward inspires people “to invest time, talent and other resources”(2012, p. 1)to create copyrighted works, “particularly educational and cultural material”(2012, p. 1). Similarly, Rothman notes that copyright is widely considered “an engine for freedom of expression”(2010, p. 484), and as a result scholars and courts will usually adopt a utilitarian approach when resolving conflicts arising from speech about a pre-existing works. From this perspective, an exercise of free speech that breaches copyright does not add as much to the “marketplace of ideas”(Rothman 2010, p. 485) as the original work, therefore, does not deserve the same protection. To participate in the global economy, responsible nations are expected to uphold copyright holders rights (Lessig 2004) by recognising copyright is not only infringed through speech about pre-existing works without the relevant permission, but it is also illegal to encourage infringement by facilitating a breach of copyright,or by importing and selling copyrighted material (Australian Copyright Council 2012). However, opponents such as Barron have criticised what they perceive as a rise in the acceptance of the “absolute protection”(2012, p. 2) of copyright, as it is a view which favours privatisation to achieve cultural development and advancement of knowledge, and overlooks the necessity in liberal ideology for an individual to have the freedom “to say and experience what other choose to say, unhindered in either dimension unless aggregate welfare, or the common good, is thereby advanced”(2012, p.5). In essence, speech which infringes copyright can still benefit democracy by spreading ideas’, therefore; the incentives from enforcing copyright may only benefit the copyright holder, not the wider society.

Internet piracy has disrupted the business model for Hollywood copyright holders, but this has not necessarily been to the detriment of society. Lessig argues the balance which existed between the law, norms, markets and architecture in society that once made it difficult to copy and share content was disrupted by the emergence of the internet and technologies such as MP3 and Peer to Peer (P2P) file sharing. However, the book disputes the true harm caused to industry and suggests that some copyright measures could have unintended consequence for the cultural environment, rather than encouraging the enlightenment of society (Lessig 2004). Slane explains that supporters of P2P networks consider practices, such as file sharing, to encourage the broad dissemination of information and thus, be more democratic than practices which limit the distribution, such as copyright (Slane 2007). Nevertheless, the Recording Industry Association of America seeks to establish online pirates as a threat to creativity by attributing blame to them for losses, such as a 8.9% fall in CD sales from 882million to 803million and fall in revenue of 6.7% in 2002, and claims that it now loses $4.6 billion every year due to copyright infringement (Lessig 2004, pp.63-70). In reply, Lessig notes that other experts point to the 7.2% rise in the retail price of CD’s and competition from other forms of media as contributing to the creation of an environment where many who breach copyright, would not pay retail price  (2004, p. 70). The book considers the true net harm to the copyright holders caused by file sharing networks to be the amount by which piracy in substitute for purchasing content exceeds those using file sharing networks to sample music before purchasing it. Additionally, sharing copyrighted material that is no longer commercially available can be good for society as the act recirculates ideas’ which may inspire new thought (Lessig 2004).

Overly broad copyright is leading to information feudalisation, where only those who can pay will have access to material that benefits society. Barron considers the “absolute protection”(2012, p. 2) of copyright to be a detraction from Kant’s philosophy that “progress towards an enlightened culture can only be achieved through the critical intellectual activity that communication- the free use of reason in public-demands”(2012, p. 40). The essay proposes in addition for calling for public reason, Kant can also be interpreted “as arguing that justice demands not only a legal order guaranteeing equal spheres of external freedom for all, but a set of legal arrangements conducive to Enlightenment in the broadest sense”(Barron. 2012, p. 28). Additionally, Barron discusses the views of Habermas in relation to the transformation of nineteenth century society and suggests that contemporary debate surrounding “information feudalisation”(2012, p. 43), which includes disagreement over broad copyright, echos concerns about his own society becoming “re-feudalised”(2012, p. 43). Living the words of Dr Martin Luther King: "...one has a moral responsibility to disobey unjust laws"(Pasternack 2013, para. 22), internet activist group Anonymous protested restrictions placed on access to his inspirational speech, ‘I have a dream.’ Arguing that such material is “too important to be censored by the broken copyright system,”(Pasternack 2013, para. 22) the group posted a link to the speech on Youtube and Vimeo so people could avoid paying a $20 access fee. When Kant is understood in light of such arguments as Habermas, calling for full participatory public criticism between equals, the philosophy of continued advancement towards enlightenment can be read as instructing society to overcome every barrier, as Anonymous and others have attempted to do, to achieve a free communicative interaction (Barron 2012). Yet, broad copyright laws and a concentration of media ownership are impeding the democratic spread of ideas’.

Copyright protection must be balanced with a respect for democratric free speech in order to preserve incentives and opportunities for innovation and change. Lessig fears a punitive system of regulation will harm industry and creativity generally by building a permission culture, and argues that policy makers must ensure that any changes they create to the law that address threats posed to industry by new technologies will also preserve the incentives and opportunities for innovation and change in liberal democracies (2004). MegaUpload is a recent example of a new technology that posed a threat to industry by facilitating copyright infringements and consequently, was targeted at the request of the United States. Mehar considers the shutdown of MegaUpload without notice, the banned of the site in Hong Kong, and the arrests and confiscation of wealth in New Zealand, to be objectionable as violates the right to first be heard and defend oneself (2012). Further in the websites defence, the essay cited the fact MegaUpload had a takedown policy to manage copyrighted material, and considers that due to the large volume of data, the operators could not reasonably be expected to take down the copyrighted material instantly (Mehar 2012). The innovative system benefited millions of legitimate user by allowing them to store and share files, hence, should be supported rather than unfairly persecuted by the United States and its allies, as the technology was responsive to the wants of a significant portion of global society and provided all users with an equal capacity to communicate ideas in a progressive democracy. Nevertheless, the case of Aaron Swartz illustrates the United States will pursues a punitive approach when enforcing the law purely to deter others from similar acts influencing the flow of information. Despite making peace with MIT after downloading 4.8million journals, and not distributing the material, Swartz still faced federal prosecution for a crime that if fully realised would merely have spread knowledge that progressed society further towards an enlightened culture (Los Angeles Times 18 January 2013, pp. 1-2). Thus, even where the harm caused by a copyright infringement is remedied with a benefit to society, or where there is yet to be any harm caused, the current approach of enforcing copyright is not balanced as it punishes attempts for innovation and change in democracy.

This essay explored the notions of copyright and free speech and argued that copyright inhibits progress towards an enlightened culture by constructing a barrier to the spread of ideas. Despite assumptions about inbuilt protections and copyright promoting new speech, speech which infringes copyright can still benefit democracy. Internet piracy does not necessarily harm Hollywood to the extent to which they claim; rather it inspires change by recirculating ideas which may have otherwise been forgotten or never heard at all. Unfortunately, broad copyright laws continue to pose a threat to the progression towards an enlightened culture by creating obstacles to free communication.

Reference List

Australian Copyright Council 2012, An Introduction to Copyright in Australia, viewed 19 September 2013 <http://www.copyright.org.au/admin/cms-acc1/_images/59740730752392bfe8f263.pdf>.

Barron, A 2012, 'Kant, copyright and communicative freedom', Law and Philosophy, vol.31, no.1, pp.1-45, viewed 19 September 2012, via Springer database.

Lessig, L 2004,  Free Culture, viewed 19 September 2013 <http://www.free-culture.cc/freeculture.pdf>.

Mehar, S 2012, 'Megaupload: sailing in dangerous waters case of online piracy and access to free information', Law Technology, vol. 45, no. 2, pp. 20-27, viewed 19 September 2013, via ProQuest database.

Pastrenack, A 2013, Copyright king: why the "I have a dream" speech still isn't free, viewed 19 September 2013, <http://motherboard.vice.com/blog/copyright-king-why-the-i-have-a-dream-speech-still-isn-t-free>.

Rothman, J 2010, 'Liberating copyright: thinking beyond free speech', Cornell Law Review, vol. 95, no. 3, pp. 463-534, viewed 19 September 2013, via HeinOnline database.

Slane, A 2007, 'Democracy, social space and the internet', University of Toronto Law Journal, vol. 57, no. 1, pp. 81-105, viewed 19 September 2012, via JSTOR database.