Freedom of Expression or Copyright: Should one take precedence over the other?

Freedom of Expression or Copyright: Should one take precedence over the other?

Tony Pak is a J.D. candidate at Osgoode Hall and is taking the Intellectual Property Theory course.

In Neil Netanel’s recent book titled, “Copyright’s Paradox”, he advocates for a copyright system that puts freedom of expression at the forefront. He argues that copyright has been thought of as a property right despite the fact that it was originally conceived as a balance designed to encourage original expression. As a result, freedom of expression has come into direct conflict with copyright.

In Netanel’s Introduction to Copyright’s Paradox, he considers the history of copyright law and comes to the conclusion that the conflict between freedom of expression and copyright has risen to the forefront by reason of changes in technology. Copying different forms of media has become easier than when copyright law was first conceived. Furthermore, with the expansion of the internet, the transmission and dissemination of works has become extremely convenient.

Based on copyright law’s original purpose, Netanel submits that the scope of rights given to authors should be determined based on its ability to serve as an “engine of free speech.” According to him, there are two reasons behind elevating free speech to such a level. Firstly, the enormous potential impact that copyright law has on free speech leads to the inescapable conclusion that free speech should serve to shape copyright. Secondly, free speech would likely be the only way to properly determine the scope of rights afforded to authors.

Netanel’s views of the US copyright system allow him to submit an argument where free speech and copyright inform one another. The fact that copyright is enshrined in the US Constitution supports to this result. However, in Canada, free speech, as enshrined in our Charter, would seem to indicate that it must dictate the limits of copyright as the Copyright Act must be consistent with the Charter’s rights and values. It is this prospect that I find troubling especially in the digital age.

In Netanel’s Introduction, he also discusses the ongoing lawsuits against YouTube and MySpace. I argue that despite the fact that all of the material on YouTube and MySpace can be considered some form of expression, there is a lot of material that is not original and simply a direct, impermissible, uncredited quote from the original author. One solution, currently in practice, has been blanket licenses by the likes of Universal Studios, but this licensing system really does nothing to promote original expression. Although the concept of originality does not jibe with the goal of free expression, I am somewhat unwilling to entirely give up on the concept. In my opinion, it cannot be denied that the copyright system does provide some incentive for original expression. A blanket license takes away whatever incentive, however small, for original expression that the copyright system could provide.

Furthermore, YouTube is not exactly known for preventing what are obvious infringements of copyright. One can frequently find full length music videos and television shows with very little added expression if any. In fact, one can even find users pirating other users; submitting material as if it were their own. Free expression does inform and should inform copyright, especially when it is clear there is meaning behind the expression. Unfortunately, in the context of YouTube, the possibility of abuse is far too high and any meaning is frequently hidden by blatant plagiarism. Freedom of expression, under these circumstances, should be limited to the extent that it can only inform copyright but should not override it.