Remaking Copyright in the First Amendment's Image

Abstract Courts are not the only realm in which First Amendment values should come into play in defining and delimiting copyright. Concern over copyright's speech‐burdening potential should also animate Congressional legislation and Copyright Office regulation and arbitration. This chapter outlines a number of ways in which the Copyright Act could be modified to be more solicitous of speech while still preserving the copyright incentive's positive contribution to our “system of freedom of expression.” The proposals tend toward narrowing copyright holders' proprietary entitlements—in some cases converting them to liability rules. But they do not all result in a net loss for copyright holders. In fact, the chapter proposes mechanisms for payment where today copyright holders receive nothing. The proposals cover copyright's extension to creative appropriation, copyright's inordinately lengthy term, the conflict between copyright and personal uses, the conflict between copyright incumbents and new media, paracopyright, and moral rights.