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No 0001 Writer Lee, Suboong
Category Intellectual Property
Subject The relationship between copyright and freedom of expression is controversial.

The relationship between copyright and freedom of expression is controversial. Two opposing views have addressed. One of them is the argument that copyright and freedom of expression are consistent because they both promote speech. Copyright is one of the means of promoting freedom of expression and the engine of free expression.

There is another argument that copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by copyright.

The potential conflict between free speech and copyright has produced a significant body of academic commentary in the United States. However, the relationship between copyright and freedom of expression has not been directly discussed in English case law until recently, nor has it been discussed extensively in the literature. It would be similar to Australia. As a result, there is no general consensus as to the role of freedom of expression in the context of copyright.

There are a number of arguments for denying the conflict between copyright and freedom of expression.

First of all, the idea/expression dichotomy indicates that copyright can be granted for a form of expression but not for an idea. The law of copyright is probably helpful to your development as an individual because it forces you to express yourself in your own individual and unique way, to speak in your own words. The law of copyright does not protect idea, so there is no substantive interference with your freedom to develop and communicate your ideas, perceptions and insights about the world. Your potential as a unique cognitive being is enhanced by formulating and expressing your own thoughts, not by parroting others. If this argument is right, then it follows that, although copyright law may indeed restrict freedom of speech, such a restriction ought not to be a matter of concern.

But if persons cannot develop and communicate their ideas without copying expression, then restricting their copying of expression silences them. The free speech restriction has obstructed a particular social good, the creation of autonomous and fulfilled individual. For example, artistic communication is a form of speech, a way of communicating ideas to others, a way of describing, commenting on and even constituting some aspects of the world. So, if you cannot copy then you cannot speak, and if you cannot speak then your development as a unique and cognitive being is stunted.

The critique to copyright law is that a work may have many meanings and these meanings are produced by society at large as much as by the author. There is a danger that owner may attempt to prevent the development of more critical readings, or readings that have a resonance for historically disadvantaged groups. For example, critic of the decision in ¡°Gay Olympic Games¡± have argue that there is no other word that conjures up the same images of sporting excellence and success, leaving homosexual groups uniquely disadvantaged. The decision of Olney J in Cadbury Schweppes ensure that a copyright owner who happens to be in a dominant market position, such as a collecting society, retains the ability to enforce his copyright and ensure compliance with reasonable licence conditions even if the effect is to deter or prevent competitive conduct in that or any other market without automatically falling foul of s 46 of the Trade Practices Act. It is an entrenched presumption of common law that competition is in the best interests of society.

In addition, copyright law, being an integral part of intellectual property law, is a kind of property. Copying someone¡¯s copyrighted work without permission, even though it is used for the copier¡¯s own expression, is not justified. Some of jurisdiction might justify protection even in circumstances where copying protection interferes with freedom of expression. In particular, if copying protecting is justified as a ¡°natural right¡± of an author then the fact that copyright interferes with freedom of expression does not mean that the former should give way, since the conflict would then be seen in terms of a clash of two, possibly incommensurable, natural rights. This is a strong intuition, but a flawed one, for property is not an absolute right. Copyright is not necessarily a natural right. Rather, it is better understood and interpreted as a legal mechanism. It is a right created by society in order to achieve social goals. Copyright law does not predate the social order but is created by it. It is an instrumental conception of copyright law. Under the instrumental view it is clear that copyright law does not mean protection to the author. On the contrary, it allows imposing limitations thereon, thus achieving the public good or the proper balance.

In USA, the First Amendment to the Constitution of the United States requires that Congress shall make no law ¡¦ abridging the freedom of speech. Melville Nimmer seized the opportunity to analyse the conflict between copyright and the First Amendment in 1970. He proposed a specific exception to copyright law. He believed that the idea/expression dichotomy mitigates the conflict. It allows the full and free circulation of ideas and facts while only inhibiting the reproduction of the plaintiff¡¯s actual specific images and forms of expression. Following this lead the argument that copyright law should withdraw, at least to some extent in the face of free speech, was raised in numerous copyright cases. However, Courts rejected it systematically on several grounds.

As a general matter, American courts refused to acknowledge that there is a conflict between copyright and free speech. One explanation was the constitutional setting. The Constitution explicitly authorizes Congress to enact copyright laws. The text of the Constitution and the First Amendment were traditionally interpreted to allow limitations of free speech despite the definitive language of the First Amendment.

The fair use doctrine is another provision of copyright law which has widely viewed by the Supreme Court in Harper & Row Publishers. The court acknowledged that the law of copyright does lead to suppression of speech and turned to internal copyright mechanism such as the fair use defence to alleviate the harshness of that restriction. It is called mechanical internalization. The fair dealing defence are part of copyright law but are designed a role in dissolving the appearance of a conflict. Hence, these internal mechanisms enable a court to reject the external aspect of the conflict. Proponents of this internalization argument point to various aspects of the copyright system for evidence of this balancing: the concept of the work of authorship, the idea/expression dichotomy and the limitation of copyright.

This argument cannot be easily dismissed. But while these mechanisms do mitigate many potential conflicts between copyright law and freedom of expression they do not fully resolve the conflict. It is crucial but should not be conclusive. Nimmer supported a First Amendment limitation on copyright rather than an expansion of the ¡°fair use doctrine¡± because he took the view that the fair use doctrine was limited by its relative inapplicability to uses which interfered with the marketability of the plaintiff¡¯s copyrighted work and that made the doctrine too limited for the purpose of adequately protecting free speech interests.

In UK, the first of the two recent UK decisions to touch the relationship between copyright and freedom of expression was Hyde Park v. Yelland [1999] RPC 655; [2001] Ch 143. At first instance Jacob J accepted the possibility of a public interest defence in an action for infringement of a copyright under UK law. Jacob J assumed that it may well be that balancing the ¡®freedom of expression¡¯ conferred by Article 10 of the Europe Convention on Human Rights (ECHR) and the ¡®right to respect for private life¡¯ conferred by Article 8 will involve the judges in just the same sort of exercise as is involved in judging whether there is a public interest defence. The Court of Appeal reversed Jacob J¡¯s decision, concluding that no defence of fair dealing for the purpose of reporting current events could succeed on the facts. In relation to the public interest defece, Aldous LJ concluded not merely that the defence could not be successfully raised in this case, but that there is no public interest defence to an action for infringement of copyright at all in the UK. The Court of Appeal¡¯s dismissal the argument that there is a tension between copyright and free speech rests upon a narrow view of freedom of expression. In other words, if freedom of expression is only concerned with the informational content of speech and if copyright does not give a monopoly over information or ideas under the ideas/expression dichotomy, there can be no overlap between copyright and freedom of expression. The decision, due to its undeniable contradictions, has been criticized by Robert Burrell. He argued that the judges may have been influenced by the doctrine of property.

In Ashdown v. Telegraph Group, it was accepted both at first instance and on appeal that copyright and freedom of expression can come into conflict. The defendant argued that the provision of the Copyright Act 1988 must be interpreted in connection and in such a way to render them compatible with the Human Rights Act 1998 (HRA) section 3 (1). Sir Andrew Morrit assumed that intellectual property rights in general and copyright in particular constitute a restriction on the exercise of the right of the freedom of expression. He did accept that there is a potential conflict between copyright and Art 10 ECHR. Thus article 10 is engaged. However, he did not take the view that copyright protection is an illegitimate restriction on freedom of expression, nor even that Art 10 ECHR could be raised as a defence to a claim for copyright infringement. Rather, he took view that the tension between copyright and freedom of expression had been reconciled by Parliament through its creation of a series of statutory exceptions to copyright infringement. The Court of Appeal in Ashdown [2002] Ch 149 agreed with Sir Andrew Morrit¡¯s conclusion, but went further and accepted that there are circumstances in which copyright can impose an illegitimate restriction on freedom of expression. However, Lord Phillips MR was cautious when dealing with when freedom of expression ought to trump copyright protection. He emphasized a number of factors not to examine the relationship between copyright and freedom of speech. The factors are as follows. First, he emphasized the importance of the idea/expression dichotomy. Second, he accepted that in many cases the fair dealing provisions adequately protect free speech interests. Third, he indicates that a court might at times be able to safeguard freedom of expression by refusing to grant an injection. Nevertheless, in order to give effect to Art 10 of the ECHR, he also indicated that there are ¡°rare¡± or ¡°very rare¡± circumstances in which freedom of expression requires that a defendant be able to copy the precise form of a work. In such circumstances, he concluded that a public interest defence is available by virtue of S 171 (3) of the Copyright, Design and Patents Act 1988. In determining whether or not the dealing was fair, the court should balance freedom of expression against copyright without needing to consider the public interest defence under 171 (3). However, Lord Phillips MR emphasized that, since the HRA came into force, ¡°it is essential not to apply inflexibly tests based on precedent, but to bear in mind that considerations of public interest are paramount.¡± The most important fact in UK is the fair dealing provisions are inadequate to reconcile copyright with freedom of expression and public interest defence will only available in ¡°rare¡± or ¡°very rare¡± circumstances a case by case basis.

In Australia, there is no general statutory provision that allows the use of protected works for the purpose of free expression. It is also doubt that the existence of a common law public interest defence to actions for infringement of copyright in Australia.

The High Court has only had a single occasion on which to consider the public interest defence. In Fairfax, Mason CJ accepted that copyright¡¯s statutory foundation did not prevent the public interest defence from operating to justify copyright infringement. However, while Mason CJ¡¯s views command significant respect, Australian courts are not bound by the decisions of a single justice of the High Court. Fairfax is thus of persuasive value only.

Australia has a low innovative threshold of copyright protection. Even though the Australian fair dealing exceptions appear to give users greater rights to copy than those applicable in the UK, we have more limited protection of free speech than USA. In Desktop Marketing Systems Pty Ltd v. Telstra demonstrates the scope of copyright protection available to database producers. When labour and expense has been invested in the receiving, verification, and recording of data, this can satisfy the thresholds test of ¡°originality¡± for the purposes of copyright protection of compilations. The Federal Court held that Telstra should not be denied copying protection because it had an effective monopoly on the collection of the relevant information or because it was under a legal obligation to collect and publish it. Copyright is relevant when considering access to information. Given the low innovation threshold, whether it be in a utilitarian record or an electronic database that is the ¡°by product¡± of the generation of the data, access to information may be restricted by copyright.

In Australia, The fair dealing exceptions are not sufficient. They are limited by the purpose of the user (research or study; criticism or review; reporting the news; judicial proceedings and professional advice). When the purpose of use is access to information it may be difficult to establish one of the specified categories. For instance, if the purpose is disclosure of information in a memorandum to criticize the actions of a public official, the criticism is not of the ¡°literary work¡± itself. The use of unpublished material may also fall outside the scope of a fair dealing.

In Australia, the current fair dealing provisions do not adequately meet the public interest in freedom of expression, and the need for a broader ¡°public interest¡± defence ought to be addressed.

Whether drawing upon UK case law to interpret the current defence, or considering the introduction of a USA style ¡°fair use defence¡±, careful consideration should be given to the differences in the level of protection offered by the freedom of political communication impliedly guaranteed by the Australian constitution, European human rights law, and the First Amendment to the United States Constitution.

If Australia were to adopt a ¡°fair use¡± defence modeled upon USA copyright law, the differences in copyright jurisprudence ought to be taken into account, particularly the higher innovation threshold and the fundamental protections offered by the First Amendment in the USA. Also HRA¡¯s effect to UK court and public interest defence should be considered.

Patricia Loughlan¡¯s approach would be very useful to consider the reform of Australian copyright. She has criticized the doctrine of fair use and assumed:

¡°The argument for bribging a First Amendment privilege outside of the confines of the fair use doctrine is that the purposes of the Copyright Act although alleged to act as the engine of the First Amendment do not always coincide with the basis underlying the First Amendment. Furthermore, maintaining the First Amendment privilege within the fair use doctrine leaves the impression that the interests found in the Bill of Rights can be balanced away every time the price to copyright holders is too high ¡¦ Protection of the freedom of speech from overzealous courts, Congress and copyright holders must be assured. An independent First Amendment privilege outside the copyright fair use doctrine is a necessary step in that direction.¡±

It would be preferable if general decisions as to where to draw the boundary between copyright and freedom of expression were to be made by the legislature, rather than by the courts.

Moral rights have been recognized in continental Europe since the 19th century. The expression ¡°moral rights¡± is derived from the French ¡°droit moral¡±. The essential character of these rights is that ¡°they are personal to the author of a copyright work and protect his or her connection to, and personal interest in, that work¡±. At the Rome Revision Conference in 1928, a compromise was reached by the civil law countries and the common law countries and Art 6bis was finally accepted by the signatory states at the Paris Conference in 1971. Moral rights can exit independently of the economic rights that subsist in a work and can be exercised by the author even after these economic rights have been assigned to another. The most significant and widespread of these moral rights are the right of attribution (the right to be identified as the creator of the work in question) and the right of integrity (the right to restrain objectionable treatment of the work in question). In this essay, the right of integrity is only considered in relation to freedom of expression.

Generally an artist¡¯s right of integrity protests three interrelate interests. At the most basic level, the integrity right protects the economic value of the artist¡¯s works. More importantly, at the next level, the right of integrity recognizes that an intimate bond subsists between the artist and his or her creation. Finally, on a more general level, the right of integrity protects the interest of the wide community in having its artistic works and cultural heritage respected and preserved. Societal interest is best protected by granting moral rights to individual artists.

On the other hand, the advent in common law countries of moral rights of integrity has begun to inhibit freedom of speech. The right of integrity creates a conservation of cultural forms through prevention any material mutilation, distortion or alteration of the author¡¯s work, at least if such change prejudices the author¡¯s honour or reputation. The right of integrity has been called a ¡®charter for private censorship¡¯. It has a strongly inhibiting effect on the expressive freedom of other artists who may want or need to make use of the original author¡¯s work in order to express and communicate their own artistic ideas.


Also, there are a number of critics to the right of integrity.

It is the case that the ¡®aesthetic vocabulary¡¯ is privately owned and the public domain is shrinking. In Snow v The Eaton Centre Ltd (1982) 70 CPR 2d 105, when a sculptor uses his right of integrity to stop a shopping centre from putting Christmas decorations on his sculptor of flying geese, he is removing his sculpture from the aesthetic vocabulary, even if those shopkeepers who put the decorations on the sculpture had no motivation beyond the commercial, no intention of ¡®speaking art¡¯. In this case the court found that the artist¡¯s subjective and emotional response to the treatment of his work and his views about the effect of the treatment on his reputation were reasonably arrived at and therefore conclusive on the matter of prejudice. To say that protection of the artist¡¯s interest in that preservation is to be decided by asking whether the artist¡¯s reputation is prejudiced is simply incoherent.

The provisions in s 195AS of the Copyright Act that provide a defence to infringement of the right of integrity where a defence is able to provide that ¡®it was reasonable in all the circumstances to subject the work to the treatment¡¯ may also provide a defence for the parodist. However, it is arguable that the defences should not be co-extensive because the values and objectives of copyright and the moral rights regimes are themselves not co-extensive.

Section 195AZH tells us that: ¡°Moral rights in respect of a work apply in relation to a whole or a substantial part of the work¡±. In discussing the right of integrity, it must be asked whether a substantial part of the work has been subjected to derogatory treatment and whether a prejudicial action has been carried out in relation to a substantial part of the work. The doctrine of substantiality is one of those areas in copyright law where courts are allowed the discretion to apply notions of fairness to the case before them. It will expand the protection offered, and at the same time impose limitations on it. Therefore, it will adapt readily enough to the advent of a systematic protection of moral rights. In UK, however, the substantial part test is increasingly seen as operating as little more than a de minimus threshold. It is fact that the importance of this test has steadily declined. The substantial part test is inevitably of uncertain application. Where an apparently insignificant part of a painting is taken by an appropriation artist and incorporated into her or his own painting, it would not amount to a ¡®substantial part¡¯ of the original painting for the purposes of the law of copyright and the artist would accordingly be powerless to stop it. The Doctrine may be culturally inappropriate in its application.

The integrity right is also controversial, especially for works created by a multiplicity of authors. A flexible position has to be adopted by the courts, in the light of this erosion of paradigm of single authorship. For example, Aboriginal art is based on ideas about communal creation, ownership and control of often ancient images and stories which constitute the art works. The moral right does appear to have some potential to address specific problems with respect to the protection of Aboriginal art against the ravages of public use that cannot be resolved by the copyright legislation alone. It is arguable that the issue of detriment to the artist¡¯s honour or reputation should be assessed with reference to that honour and reputation within the particular Aboriginal community.

Patricia Loughlan insists ;

Moral rights are legal constructs which may inhibit the progress of art and constrain its transformative power. Such rights are based upon a particular aesthetic which embodies romantic, individualistic and canonical conceptions of artistic creativity and which does not recognize or accommodate the collective, continuing nature of all creativity. An author exercising a moral right wrongfully gains a right of control over meaning, context and use which takes absolute precedence over the needs of other artists who may wish to change the work¡¯s meaning and context and over the role of readers and viewers as meaning-makers of the work¡¦ moral rights, by canonizing the artist and consecrating the art work, may function to separate the discursive practices of art from daily life and thereby inhibit art¡¯s cultural and political power.

In summary, it would be true that there is a conflict between the author¡¯s moral right of integrity and another party¡¯s right of freedom of expression.

What is the solution to resolve this conflict?

It would necessary to provide a fair balance between the genuine moral interests of the author and the genuine economic interests of those using and exploiting copyright works. There must be a degree of restraint and flexibility on both sides.

More fundamentally, Patricia Loughlan¡¯s view could be considered to answer this question. She has argued that the presence of a right of integrity in the legal order has a strongly negative effect on artistic freedom and progress and ought to be reversed.


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  0001   Lee, Suboong   Intellectual Property The relationship between copyright and freedom of expression is controversial.
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