Copyright's Paradox: a book by Neil Netanel

The para­dox ref­er­enced in my book’s title is that copy­right serves both as an “engine of free expres­sion” and silencer of free expres­sion. Copyright law pro­vides a vital eco­nomic incen­tive for the cre­ation and dis­tri­b­u­tion of much of the lit­er­a­ture, com­men­tary, music, art, and film that makes up our pub­lic discourse.

Yet copy­right also bur­dens speech. We often copy or build upon another’s words, images, or music to con­vey our own ideas effec­tively. We can’t do that if a copy­right holder with­holds per­mis­sion or insists upon a license fee that is beyond our means. And copy­right doesn’t extend merely to lit­eral copy­ing. It can also pre­vent par­o­dy­ing, remold­ing, crit­i­cally dis­sect­ing, or incor­po­rat­ing por­tions of exist­ing expres­sion into a new, inde­pen­dently cre­ated work.

Both sides of that equa­tion are much more com­pli­cated than that sim­ple descrip­tion, as are the ways in which we might try to solve the para­dox and what the First Amendment should, there­fore, say about copy­right law. (At least, I think they are much more com­pli­cated; that’s why I wrote a whole book about the copyright-free speech paradox!)