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More than two decades ago, in attempting to make sense of the structural dissonance between copyright and free expression, the U.S. Supreme Court famously declared that copyright was intended to be “the engine of free expression.” Ironically, this characterization was at the time intended as little more than a rhetorical device. In that very case, the Court proceeded immediately thereafter to analyze copyright as a “marketable” property right and conclude that absent a showing of market failure, neither fair use nor the First Amendment would preclude a finding of infringement. Instead of injecting a new set of values into copyright analysis, the “engine of free expression” metaphor served to effectively downplay the extent to which the value frameworks underlying the two systems could ever come into conflict with each other. Indeed, later opinions too have used it precisely to this end.

Despite its origins, Neil Netanel has long believed that there may yet be some merit in the Court’s characterization. In his view, copyright is a state mechanism directed at enhancing the “democratic character of civil society.” By providing creators with an incentive to produce creative expression, supporting expressive activity via the market, and setting limits to private control of creative expression, copyright contributes directly to the development of a vibrant civil society. Netanel’s “democratic paradigm” stands in contrast to both the market-based and minimalist accounts of copyright and attempts to take seriously copyright’s ability to be an engine of free expression.


Intellectual Property Law | Law | Science and Technology Law


Copyright's Paradox by Neil Weinstock Netanel, New York, NY: Oxford University Press, 2008, pp. ix, 274, $34.95.