The Impact of Copyright Law and Other Ownership Mechanisms on the Freedom of Inquiry: Infringements on the Public Domain

Abstract

IntroductionThe concept of copyright or other ownership rights has been discussed in the literature as an impediment to the free flow of information within an institutional context (e.g., Rice, 2001; 2002) This impediment is often presented as a rubric of two conflicting rights: property rights (copyright) and communicative rights (free speech), which we are calling rights of inquiry, in the context of the academy, though these rights of inquiry are not limited to the academy alone but embody a public-wide plethora of rights to inquire, read, receive, discuss and debate, and share information. To illustrate the position of developing threats against these rights of inquiry, we use developments in the United States. This is done several reasons, foremost because the legal infrastruc- ture is most prone to facilitate that threat, e.g., through implementation of the WIPO Copyright Treaty of 1996, and second, because the conflicting right of freedom of inquiry is also well, if not most, developed in the United States, as codified in the First Amendment to the Constitution.In the US, we have accepted free speech as a constitutional right, or at least its formulation as a right in balance with others, such as a right against which the government may not intrude, or as a private right (for instance, copyright). The lack of free speech as a constitutional right in countries other than the US, may however, account the lack of development in the legal rubric of communicative rights such as the right to speak, read, and inquire. Yet, Hugenholtz (2001), in his review of European case law, posits a cluster of reasons (natural law mystique, reluctance to fundamental rights in relationships between citizens, lack of constitutional adjudication mechanisms) for the late development of European interest in the potential copyright/free speech conflict.1 At least in the United States, with its historical development of strong speech rights, efforts to use other legal rights, public or private, to curtail those rights is an effective vehicle to control and curtail inquiry.Thus, we can ask: Can copyright and other private ownership rights over information (such as a contract) exist along side free speech rights, rights of the academy to inquire, to read, receive, and share information? Or, asked in the negative, what do threats to recent legal developments in the area of copyright and related rights pose the academy of inquiring minds, and the broader process of expression and inquiry in society? This question bridges legal and ethical grounds, and reveals a potentially uneasy relationship between the two. One approach (Watt, 2000) posits, In general, new cultural creations are more valuable in the hands of consumers than if they are retained by their creators, and so it is important to consider how such intellectual property can best be transferred between members of society in order to take full advantage of it.2 And, moreover, considering a global perspective, An international intellectual property regime, designed to facilitate the production and use of the global public good-knowledge-in a way that sustains high rates of growth and is consistent with broad notions of equity, must balance a variety of concerns, including dynamic and static efficiency and the use of the global knowledge commons.3Yet, beyond the broader notion of consumer welfare and inquiry, we focus more specifically here on the concept of the academy:Universities to date have been places where the rewards to individuals the creation of knowledge have flowed from its diffusion rather than from keeping it a secret or placing a price on it. The diffusion of knowledge is a precondition to rewards of peer recognition and reputation. It is through the many individual acts of communication of their research at conferences, classes, in conversation, through journals, on the Internet and so on that researchers build the publicness of knowledge, a publicness that travels across many sectors of society and across borders. …