Copyright as a Tool for Censorship?

Brandon Evenson is a 2010 JD Candidate at Osgoode Hall Law School.

Over the last two months, Professor Jim Gibson from the University of Richmond School of Law, has written two articles identifying how Copyright law has for many centuries, and to this day, been used as a tool to censor works.

Professor Gibson began his first article chronicling the use of copyright as a means to censor works. The first attempt to limit the use of copyright for censorship purposes occurred three hundred years ago in the Statue of Anne. The Statute of Anne gave individual authors exclusive rights to their works. This replaced a system where the distribution of books was controlled by the government through royal charters, which granted monopolies over printing and empowered the chartered firms to seize unauthorized books and bring their publishers before the courts.

Despite the Statute of Anne, Professor Gibson argues that Copyright continues to be used as an instrument of censorship. Censorship continues in two forms: direct and indirect. Direct censorship arises from the court’s judgment about the immorality of certain publications. There are a long line of cases both English and American where courts have refused to grant copyright protection for works that were lascivious and immoral. The most recent example of this type of censorship is the 1979 case of Mitchell Brothers v. Cinema Adult Theater. In Michelle Brothers, the exclusive licensee of a pornographic film sued another theater for their unauthorized exhibition of the film. At trial, the US district court recognized the long line of cases that refused to protect immoral works, judged the film obscene and denied it copyright protection.  Though the decision was reversed on appeal, the decisions shows how recent this attitude is within the American courts.

The second type of censorship – indirect censorship – occurs when the Copyright owner is motivated by desires to suppress expression rather than disseminate. This type of censorship deserves greater scrutiny.

Professor Gibson argues that Copyright law operates under the assumption that the author wishes to disseminate his or her work to the public for a fee. Accordingly, to incentivize authors to create works, the threat of unauthorized and uncompensated copying needs to be minimized. If the assumption is false, however, and the Copyright owner does not wish to publish their work, then copyright law can be used to prohibit and censor materials.  A prime example of this is rapper Eminem’s use of copyright law to suppress racist lyrics he wrote in his youth. Professor Gibson questioned whether parties should be allowed to use copyright law to hide their dirty laundry from the public. Infringement of copyright in these cases would not result in an economic injury, but something more akin to privacy. He answered his question stating that copyright is ill-suited to deal with such concerns: “Its constitutional goal is to promote the dissemination of information, not retard it.”

There are two issues with Professor Gibson’s argument that copyright is an indirect censorship tool. Professor Gibson recognizes these problems upfront. The first problem is that Fair Use (Fair Dealing in Canada) regulates to some extent the tension between privacy and the public interest. In some cases infringment of copyright is justified if it is in the public interest. A good example of this is the UK case of Hubbard v. Vosper. Vosper, a long time Church of Scientology follower and member of the inside circle, left the Church and published criticism of church books and confidential material. In the criticism, Vosper copied substantial parts of the Church’s books authored by church founder Hubbard. Hubbard sought an injunction and Vosper went to court to lift. Under the fair dealings defence, the UK Court held that breach of copyright was fair and justified given that it was in the public interest to expose the material.

The second problem with Professor Gibson’s argument is that the idea/expression dichotomy makes copyright an ineffective censorship tool.  Copyright only protects the expression and not the ideas captured within the expression. Paraphrasing the racist lyrics of Eminem would not violate copyright law.

Despite these weaknesses, Professor Gibson may still generally be correct in his assertion that US Copyright law is ill-suited to handle concerns of censorship. If an author was not incentivized to create a work because of the profits they would receive from that work, why should copyright law apply to them?  These authors fall outside the purpose of the copyright act. The work would have been created irrespective of whether the author would have a monopoly to sell the work. The underlying assumption is of course that the sole design of copyright law is to “encourage the creation and dissemination of expression.”

It is in this regard that Professor Gibson’s argument suffers a fundamental dint however, especially with respect to copyright law in other countries. Not all copyright laws exist for the sole purpose of encouraging the creation and dissemination of expression. As the Supreme Court of Canada stated in Galerie d’art du Petit Champlain inc. c. Théberge at paragraph 116:

[I]t is important to recall that Canadian copyright law derives from multiple sources and draws on both common law tradition and continental civil law concepts. As Moyse observes, supra, at p. 562:

[TRANSLATION] What the term “copy-right” very certainly reveals is the actual function of copyright. It is an exclusive right and, as it applies to the part that relates to the commercial exploitation of the work, a true monopoly on reproduction. …Canadian law inherited that aspect while remaining receptive to the French doctrines, particularly because of Quebec’s influence. This does great credit to our law since the Canadian Parliament is more inclined than any other legislature to stay attuned to external developments in order to mould its own rules. …

… Thus, in Canadian statutes, the intention is to establish both a right that is centered on the person of the author, this being derived from the civil structures of the right of ownership, and a definitely dynamic right centered on its economic function, which reflects the theories underlying the concept of monopoly [.]

Canadian statutes must therefore be interpreted in light of their historical context, domestic case law and legislative developments, and international conventions.

Moral rights are an example of the continental civil law influence on copyright. Section 14.1 of Canada’s Copyright Act gives authors a right to be attributed with their work (including the right to anonymity and a pseudonym), a right to prevent their work from being mutilated or distorted should it prejudice the author’s honour or reputation, and a right to not have their work associated or linked with a certain product, cause, service, etc. These moral rights are founded on the belief that a work is an extension of the author’s personality. If such a continental understanding is applied in determining the purpose of copyright law, then it becomes apparent that copyright law does not only incentivize authors to create and disseminate their work. Assuming this continental view, should not the author of a personal journal of intimate thoughts be able to exclude all from reproducing in the same way that they are entitled to anonymity or a pseudonym with respect to their work? Are these rights not consistent with one another?

It is apparent Professor Gibson’s arguments were not directed toward Canadian copyright law or nations with similar moral rights. However, recent US case law may also impact Professor Gibson’s argument specifically with respect to the purpose of American copyright law. The difference between moral rights and economic rights is arguably a false dichotomy. In Jacobsen v. Katzer, the federal court commented that authors of open source works might be able to sue for copyright infringement on conditions typically considered moral rights. The court said that prima facie non-economic license restrictions such as attribution, should actually be considered economic benefits and thus be protected under copyright. The court reasoned that just because an author gives a license for no monetary consideration, does not mean that they have relinquished all economic rights. While a license for monetary consideration may be the standard method of licensing to create income, releasing for free public use can also provide economic benefits because the author creates a reputation and generates market share for their programs.

The inextricable link between an author’s personality and their economic interest is perhaps best captured in a 1777 quote from P.A. Caron de Beaumarchais, founder of the Société des Auteurs:

[TRANSLATION] It is said in the theatre lobby that it is not noble for authors to write for the worthless pursuit of money, they who pride themselves on their claim to fame. Indeed, they are right, fame is appealing. But they forget that nature condemns us to dine 365 times in order to bask in glory merely for a year. For the authors, they are not defending a privilege, but the sacred right of all rights to retain ownership of their works… .
(M. Pagnol, Preface, in J. Boncompain, Le droit d’auteur au Canada (1971),  at p. 9.)

Professor Gibson is correct that: “[I]f there is an injury to be articulated here, it is different from the economic loss that results from the usurpation of one’s right to profit from one’s own expression.” But Jacobsen v. Katzer supports a more expansive view of the types of economic loss American copyright law protects against. Accordingly, if an author can require attribution for their free, open-source code should they not also be able to remain anonymous or not have their work published if it would have some impact on their economic interests? Does this not fall within the purpose of American copyright law?