Exploring Copyright Law and the Democratic Paradigm - UCLA Law

This essay delves into the complex relationship between copyright law and freedom of speech, drawing upon Netanel's discussion of the Neoclassical Institutional Economic Property (NIEP) theory and the democratic paradigm, highlighting the inherent tensions and the need for balance. It further examines Lessig's concepts of read-only (RO) and read/write (RW) cultures, analyzing how copyright law can facilitate both by providing a framework for responsible creation, dissemination, and remixing of content, ensuring accountability for both original creators and those who build upon their work. The essay uses examples like Alice Randall's 'The Wind Done Gone' to illustrate the conflicts and resolutions between copyright and free expression, ultimately arguing that copyright plays a crucial role in fostering both creative freedom and responsible use of intellectual property in a democratic society. Desklib offers a wealth of similar solved assignments and resources for students.

Running head: COPYRIGHT AND FREEDOM OF SPEECH
COPYRIGHT AND FREEDOM OF SPEECH
Name of the student
Name of the university
Author note

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COPYRIGHT AND FREEDOM OF SPEECH
Answer to question 1:
The United States Supreme Court as Netanel (2008) explains has labeled copyright as
“the engine of free expression”. The Copyright law gives an important economic encouragement
to create and disseminate most of the music, literature, commentary, film and art that constitutes
much of the public discourse. However, Copyright does not always guarantee protection of
privacy rather; it acts as a burden to free speech. People often require copying or building upon
the work of others like music, images, words or statements to convey their own experience or
thoughts in an effective way. This could not be possible if the original creator withholds
permission with the help of the Copyright law or labels a license fee that is beyond what people
could afford.
NIEP theory refers to the Neoclassical Institutional Economic Property theory. As per
this theory, intellectual property is the same as real property and hence, trespassing the
intellectual property is equally punishable as trespassing the real property. Further, the theory
also demarcates between economic regulations against the regulation of expression. The
neoclassicist economics upholds the idea of providing maximum authority and control to the
copyright holder. Anderson and Christen (2013) state that while the traditional copyright
approach views copyright as essential but faulty solution to the problem of public goods,
neoclassicists find copyright much more than just an incentive for the creator but also an
instrument for assisting markets in obtainable expression. Netanel (2008) explains that viewing
copyright, as an essential tool to save the creators’ work is wrong because the real work of
copyright is to encourage the progress of science, as mentioned in the First Amendment by
inciting the formation and extensive distribution of varied expression. The author further argues
that copyrights should be treated as proprietary rights as longs as the original expression serves

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the purpose completely. Otherwise, copyright should be limited in duration and scope if it
unnecessarily comes in way of free speech.
Lotov (2003) explains that the concept of free speech and copyright restrictions is what
creates the democratic paradigm. The First Amendment guarantees rights to free expression,
which is the essence of true democracy. In a democratic society, people have the right to go to
court if they feel that their work, their intellectual property has been copied without their
permission (Barendt 2005, p. 249). Democracy allows the people to express freely even if it
means using others’ words or expression. An example of copyright law and democratic paradigm
conflict is the Alice Randall retelling of Margaret Mitchell’s classic novel Gone with the Wind.
Randall retold the story from a slave’s perspective in her work The Wind done Gone that was not
accepted by Mitchell’s heirs. They filed an infringement case against Randall, which was upheld
by the Georgia district court but the Eleventh Circuit reversed the decision stating that copyright
law should align with the First Amendment. However, even if the copyright law prohibited
Randall’s work, she could still have vented her thoughts through op-ed pieces and that is the
democratic paradigm.
Answer to question 2:
The read-only culture, according Lessig (2008), is a one-way process where the public
act as passive consumers. Books could be used as examples of read-only culture. Apart from
that, the traditional media are also an example of read-only culture because there also, the public
are passive viewers without any scope to revert or interact. The information in the read-only
culture is provided to the public by a professional source, which owns n authority on that specific
information.

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COPYRIGHT AND FREEDOM OF SPEECH
The read and write culture, on the other hand, revolutionized the way the consumers
consumed the content. This culture encouraged imitative works through combining or abridging
materials that already existed to create a new product. The culture came to be known as the remix
culture (Hafner 2015). It is rampantly present in the music industry in the present era, as Lessig
(2008) observes.
The author finds that the the norms that govern the musical forms of expression are much
more restrictive than those governing the literary are are or any other textual forms of expression.
It however must be remembered that the right to remix or quote any form of art is crucial for
maintaining creative freedom and any free society must not restrict it. With the advent of the
digital platform that empowered the public to use copyrighted works in blog and other forms, the
RW culture has rapidly expanded. As Aufderheide and Jaszi (2018) observe, ranking and tags
system such as in Reddit or Digg or even in del.icio.us, has made it possible for the consumers to
use copyrighted works without breaking the copyright law. Any blogger could use tags or
ranking systems to mark the story or post they read online to make it available to others reading
online. With the increase in tags, the content becomes even more important and interestingly, the
consumers or viewers who directly create the significance rather than the advertisers. Thus, it
gives immense power in the hands of the consumers although it is also true that this power could
easily go out of control.
To ensure that sycophants do not misuse the power, the role of copyright becomes
important. Copyright laws make sure that sycophants do misuse the work of any artist by putting
enough restriction on the work. In case of read-only culture also, copyright could play an
important role, as it would restrict undue broadcast of information that is not necessary to convey
a message. Now, people would ask about the need for copyright in read-only or RO culture. The

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answer is that remix culture is created through the combination of RO culture elements.
Copyrighting the RO culture would invariably restrict the RW culture as well and this would
ensure that the information or product is accessed and disseminated responsibly (Ku 2017).
Therefore, as evident from the above discussion, copyright facilitates both read-only and read
and write culture. It gives the original creators as well as those using the original work a way to
be accountable for what they are reading and copying.

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References:
Anderson, J. and Christen, K., 2013. ‘Chuck a Copyright on It’: Dilemmas of Digital Return and
the Possibilities for Traditional Knowledge Licenses and Labels. Museum Anthropology
Review, 7(1-2), pp.105-126.
Aufderheide, P. and Jaszi, P., 2018. Reclaiming fair use: How to put balance back in copyright.
University of Chicago Press.
Barendt, E., 2005. Freedom of speech. Oxford University Press.
Hafner, C.A., 2015. Remix culture and English language teaching: The expression of learner
voice in digital multimodal compositions. TESOL Quarterly, 49(3), pp.486-509.
Ku, R.S.R., 2017. The creative destruction of copyright: Napster and the new economics of
digital technology. In Copyright Law (pp. 207-268). Routledge.
Lawrence, L., 2008. Making Art and Commerce Thrive In The Hybrid Economy.
Netanel, N.W., 2008. Copyright's paradox. Oxford University Press.