Journal of Intellectual Property Law, Vol. 4, No. 1 (Fall 1996), pp. 1-23


By letter of 1 March 1993, the Copyright Compliance Office of the Association of American Publishers (AAP) informed a copyshop that it had “without prior permission, made multiple copies of excerpts of copyrighted works for distribution to students in course anthologies.” Stating that this copying was an infringement of copyright, the letter requested the copyshop to sign an enclosed agreement stating it would not commit such acts again and to pay a penalty of “$2,500 to help defray the costs of the AAP's copyright enforcement program in this matter and to impress on your business the need to operate in compliance with controlling law.” The letter contained a promise not to sue for infringement if the copyshop complied with conditions. One of the offenses of the copyshop was distributing the copies after permission was requested, but before it was granted. And one of the works alleged to have been infringed--a drama, “The London Merchant” by George Lillo, copied from the Signet Classic Book of 18th & 19th Century British Drama -- was not (and had never been) protected by American copyright, the “controlling law.” If the actor in this scenario had been the U.S. Secretary of Education, a court would surely conclude that the menacing letter violated the free speech rights of the professors and students for whom the copyshop made the copies. Why, then, should a powerful trade association not be held accountable on similar grounds? The traditional answer -- that the AAP is not a governmental agency -- is hollow in view of the fact that: 1) the impact is the same as if a government agent had been the actor; 2) the private individual as actor assumed a law enforcement role; and 3) the actor purported to act under the authority of laws enacted by Congress. The short answer to the question is that the relationship between copyright and free speech rights has not become a part of legal culture. The primary reason almost surely is that judges view copyright against the backdrop of property law. As one court said, “The first amendment is not a license to trammel on legally recognized rights in intellectual property.” Such a position almost surely forecloses a recognition that while copyright protects the author's exclusive right to publish, the First Amendment protects the citizen's right to read what is published. Our argument here is that there can be no complete understanding of copyright law without an understanding of its relationship to the First Amendment, arguably the single most important provision of the U.S. Constitution. In pedagogical terms, the relationship is that the copyright clause protects the right to teach (by publishing original works of authorship) and the First Amendment protects the right to learn (by reading the published works) in case the copyright owner wishes to deny access to the work. In this Article we assume a policy favoring a public right of access to use copyrighted materials for their constitutional purpose, learning. The premises are that: 1) the right of free speech includes the right of access to copyrighted materials; 2) there are free speech values in the copyright clause itself; 3) to protect the constitutional policies of copyright in today's world we need to return to first principles; and 4) the problem of how to accommodate the public's right of access and the copyright owner's right to profit can best be resolved by recognizing that copyright law is public law, not private law, and by acting accordingly. Finally, we can recognize that copyright permits an incursion into the public domain for public purposes more important than the private purposes that are touted as necessary to induce the creation of copyrighted works.