Intellectual Property and the First Amendment

Intellectual property rights and free-speech rights find explicit support in the Constitution. The First Amendment prohibits the government from ‘‘abridging the freedom of speech.’’ Article I of the Constitution grants Congress the power to secure ‘‘for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’’

Congress has protected intellectual property rights through copyright, patent, and trademark laws. Copyright Law grants authors exclusive rights to their works for up to seventy-five years after their death. Patent law grants inventors a twenty-year monopoly on the manufacture or sale of their inventions. The law of trademarks—distinctive words or designs identifying the source of goods or services—allows trademark holders to prevent others from using similar words or designs to market similar goods or services.

Intellectual property rights and free-speech rights exist in a symbiotic relationship. Without free-speech protection, authors and inventors might find themselves harshly censored. Yet without intellectual property protection, authors and inventors might not invest their creative energy in works that ultimately benefit the public. In this balance between empowering authorship and empowering speech, there lies the risk that the predominance of one may diminish the other.

Digital communication media could destabilize this balance by changing the ways that people share information. Before the digital age, information sharing was constrained by the practical limits on how many paper copies or tape recordings one could make and distribute. Digital media, however, have largely erased such physical constraints. Some argue that the ease of copying and sharing information threatens intellectual property rights.

Others, however, believe that the rise of digital media will shift the balance in favor of intellectual property rights. Digital rights management (DRM) technologies allow intellectual property rights-holders to encode restrictions within digital files or digital media. DRM technologies can limit how often or how long the user views a file and can similarly restrict the user’s ability to alter, share, copy, print, or save the file. Although DRM technologies are not immune to hackers, the Digital Millennium Copyright Act makes it a crime to create or distribute tools that circumvent DRM technologies.

DRM technologies threaten a critical aspect of the balance between intellectual property and free speech. Under the ‘‘fair use’’ exception to Copyright Law, people need not receive the author’s permission to use copyrighted works for such purposes as criticism, comment, news reporting, teaching, scholarship, and research. The fair use exception allows these important areas of public discourse to benefit from the work of authors and inventors, yet still protects those works against commercial exploitation. If DRM technologies were perfected, they could prohibit the fair uses that have traditionally been considered essential to a healthy public discourse.

SHAUN B. SPENCER

References and Further Reading

• Halbert, Debora J. Intellectual Property in the Information Age: The Politics of Expanding Ownership Rights. Westport, CT: Quorum 1999.
• Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House 2001.
• Moore, Adam D. Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues. New Brunswick, NJ: Transaction Publishers, 2001.
• Reidenberg, Joel R., Lex Informatica: The Formulation of Information Policy Rules Through Technology, Texas Law Review 76 (1988): 553–593.
• Samuelson, Pamela, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised, Berkeley Technology Law Journal 14 (1999): 519–566.