Copying for Religious Reasons: A Comment on Principles of Copyright and Religious Freedom

Abstract

A growing number of copyright cases involve disputes over the copying of religious texts by defendants who claim a religious need to use them. The interplay of copyright and religious freedom raises complex and interesting issues. This comment makes two points. First, although accommodation of the interests of some religious users of a religious texts is justified, the accommodation is likely to come through copyright law itself, and not through an independent claim of religious freedom. To put it another way, in a case where copyright law prohibits the copying by a religious user, courts are unlikely to declare any exemption from the copyright law because of religious freedom principles - and indeed, they should be relatively reluctant to declare an exemption. Although I generally defend the idea of exempting religious exercise from some laws in order to preserve religious freedom, I offer a number of reasons why free exercise exemptions are, and should be, infrequent with respect to copyright law. With respect to each of these reasons, however, I also enter some caveats. Broad liability for copyright infringement can interfere with religious freedom. Such interference can mostly be prevented by proper interpretation of copyright law, in particular the fair use doctrine, and part II presents the copyright-based arguments for shielding certain religious uses through copyright doctrines. This part also attempts to define exactly what the line should be between permissible and impermissible religious uses. But if copyright law is not up to the task of protecting religious uses - if liability doctrines are interpreted too broadly, and defenses such as fair use too narrowly - then a religious-use exemption may occasionally be necessary.