The Conflict Between Copyright And The Right To Free Speech In The Age Of Digital Communication: A Philosophical Inquiry Of Transformative Uses

The unchecked expansion of the copyright regime in the last 30 years, the celebrated promotion of citizens'right to free speech in the last half century and the explosive development of digital technology in the last two decades have constituted an uneasy combination of conflicting forces, which finally activates the dormant tension between copyright and the right to free speech with the advent of the Web 2.0 participatory culture. Occupying the center of this tension is the issue of users'transformative uses of copyrighted works. A transformative use of a copyrighted work refers to a use which, though incorporating key elements or portions of the copyrighted work, results in an original work in its own right by either adding original content or creatively rearranging the used elements or portions of the copyrighted work. Due to its strong relevance toward freedom of speech, the controversy surrounding the potential copyright infringement of (digital) transformative uses has stirred up increasingly heated debates within both the professional academia and the popular media.How to respond to the tension between copyright and the right to free speech in the digital age will have a direct impact upon the economic calculation of copyright owners, the possible business models of the network industry, the exertion of constitutional rights by citizens and the tapestry of the digital culture. However, the current copyright jurisprudence itself can not provide sufficient positivist legal resources to enable a satisfactory resolution. Under this circumstance, a normative examination of the moral legitimacy of (digital) transformative uses and the moral boundary between copyright and the right to free speech acquires relevance and urgency, since such a philosophical inquiry may offer some insights for the necessary structural adjustment of the copyright regime in the face of the digital challenge.Building on critical examinations of the current two approaches toward the issues, i.e. the utilitarian and the natural rights, this thesis attempts to offer an alternative egalitarian approach, which, together with borrowing Fichte's insight upon the"public forum"characteristic of published copyrighted works, will provide a new perspective for untangling the conflict between copyright and the right to free speech and ascertaining the moral justification for (digital) transformative uses. The thesis is composed of four main chapters. Chapter one first recalls briefly the historical emergence of the tension between copyright and the right to free speech before giving a detailed description of the definition and classification of transformative uses. The chapter then examines and summarizes the relationship between (digital) transformative uses and participatory culture, the free speech values of (digital) transformative uses, and their legal dilemma within the current U.S. copyright law system. This chapter demonstrates that although transformative uses have sharpened user's awareness of his/her cultural agency through active participation in the social process of meaning production, which has significant free speech values, the current U.S copyright regime can't offer them sufficient protection. The key reason behind this insufficiency is that transformative uses of copyrighted works are not legally defined as the users'right to free speech but an affirmative defense against copyright infringement charges, which puts them on an unequal footing with copyright owners'exclusive entitlements.Chapter two critically examines the utilitarian approach toward solving the conflict between copyright and the right to free speech. The utilitarian approach regards copyright as a state-granted statutory privilege rather than the author's natural property right, designed to give creators enough incentive to create in order to realize the ultimate policy purpose of maximizing speech production and pluralizing viewpoints expressed. Deploying the strategy of enhancing the value rank of the right to free speech by negating the natural right character of copyright and applying the First Amendment principle of strict scrutiny against state-granted content regulations, the utilitarian approach attempts to reverse the trend towards unchecked expansion of contemporary copyright regime so as to ensure citizens'constitutionally guaranteed exercise of the right to free speech. However, the unavoidable failure of utilitarianism to recognize the separate intrinsic value of individual persons inevitably leads to the morally controversial consequence of sacrificing individual's basic property rights for the purpose of achieving the overall welfare.Chapter three critically examined the natural rights approach towards solving the conflict between copyright and the right to free speech. The chapter first exposes the essence of the natural rights conception, which is the equal respect toward each person's intrinsic dignity, and then reveals the importance of the natural rights tradition within the U.S. political morality. After giving a detailed account of the natural rights conception of copyright based on Locke's labor theory and its lasting influence within the history of U.S. copyright regime, the chapter summarizes the basic structure of the natural rights approach, which firmly endorses the Lockean natural rights character of copyright while making full use of the various internal restrictions or provisos imposed upon private or intellectual property rights within both Locke's theory and other natural law principles. In other words, the natural rights approach attempts to reconcile the incongruence between copyright and the right to free speech by deploying the inherent moral requirements of natural rights rather than positivist legal doctrines. However, the natural rights approach tends to treat published copyrighted works as quasi-common cultural resources similar to abstract ideas, thus blurring the line between the right to access the copyrighted work and the right to use the copyrighted work after securing the legal access. Consequently, the natural rights approach overly restricts the copyright owners'capacity to exert certain exclusive control upon their published works.Chapter four espouses the main argument of this thesis, which is a rights egalitarian approach. Inheriting the principled recognition of the natural rights character of copyright emphasized by the natural rights approach, this chapter first clarifies the ultimate moral reason underpinning the legitimacy of freedom of speech, thus integrating the Lockean right to private property and the right to free speech in a system of basic rights, which is morally grounded on the Kantian equal respect towards the intrinsic value and humanity of individual persons as separate rational agents. By this way, the equal moral status between copyright as a Lockean private property right and the individual's right to free speech is justified and highlighted. The chapter continues to explain how the two essential characteristics of copyrighted works, i.e. public goods and public forum, provide the necessary practical roadmap to implement the egalitarian approach in reality. By demonstrating the intimate connections between these two characteristics and the moral legitimacy of copyright and the right to make transformative uses respectively, this chapter finally demarcates the moral boundary between copyright and the right to free speech, while affirming the moral justification for users'free speech right to make (digital) transformative uses of those copyrighted works to which the prior legal access has been secured.The conclusion of this thesis is that (digital) transformative uses of copyrighted works and then the distribution of the resulting transformative works should be classified as the user's right to freedom of speech, which imposes a non-interference duty upon copyright owners, as long as the legal access to the copyrighted works has been secured in advance. Although the moral normativity of this particular right to freedom of speech should be recognized long before the age of digital participatory culture, its real-life relevance and urgency have been significantly accentuated by the digital momentum. In the meantime, (digital) transformative use should also be regarded as a moral requirement of copyright owners'private property rights towards users of copyrighted works. Thus, (digital) transformative uses not only serves as the fundamental principle in demarcating the dividing boundary between copyright and the right to speech, but also represents the manifestation of the equal moral status of private property rights and free speech right within the intellectual arena in the digital age.There are two appendices to this thesis. Appendix one examines and summarizes the legal reasoning in a series of Supreme Court cases dealing with the issue of to what extent the owner of an open-to-all shopping mall can restrict citizens'expressive activities within the mall. These cases will be used as a possible source of positivist legal reference for the egalitarian approach presented by this thesis.Appendix two explores four probable practical dilemmas if the egalitarian approach was adopted by the current copyright jurisprudence. By elucidating that these scenarios will not materialize, the practical feasibility of the egalitarian approach obtains a further empirical support.