It isn't clear that the class of creators who...draw on copyright-expired works deserves consideration equal to that given to the class of creators of utterly original works that do not depend on exploitation of copyright-expired works...Indeed, one could see the Copyright Clause as creating an author/derivative-user hierarchy where authors come first - with the right not only to force those who use works without the authors' permission to pay damages, but also the right to get an injunction against use by the derivative user. "Fair use" is a carve-out to copyright, not vice-versa - and that suggests that original creators rights may take precedence over derivative users' rights....Derivative users' First Amendment rights may well be lower in the constitutional hierarchy than those of original creators - whose work the Copyright Clause was written to protect, and whom First Amendment doctrine has kept most centrally in mind.This is a very strange use of copyright terminology. To begin with, the word "derivative" is used in the Copyright Act to refer to the creation of new works, not to performances or displays. The clause 17 USC §106 (2) refers to "the right to prepare derivative works based upon the copyrighted work". Hilden seems to start with derivative authors, who "draw on copyright expired works", but quickly shifts to performers and exhibitors, whom she calls "derivative users". Yet performances and displays are mentioned in clauses (4) and (6) clauses of section 106, and the word "derivative" is not used in those clauses. This quirky use of the word "derivative," together with Hilden's use of loaded phrases like "the class of creators", "authors come first", "lower in the constitutional hierarchy" suggests that she is trying to bait her readers into thinking that she holds performers and exhibitors in contempt, and that she believes that this contempt has the warrant of the Copyright Act and the Constitution.
One wonders why this should be. The simplest explanation is that Julie Hilden does indeed hold performers and exhibitors in contempt. But if she does, she cannot rely on the Copyright Act to support her view. The current copyright law certainly reserves "the right to prepare derivative works based upon the copyrighted work", the right of public performance, and the right of public display. But this reflects the value that these exclusive privileges can have to the rightsholder. It is an economic judgement concerning potential value, not a moral judgement holding performance, display, or derivative authorship in contempt.
But let us suppose that Hilden does not scorn performers, exhibitors, or derivative authors, and the use of loaded language is mere gratuitous tweaking of her readers' noses. In what way might "original creators" as Ms. Hilden calls them, be considered favored by the First Amendment and the Progress of Science clause, while "derivative users", as she calls them, must be considered spurned or denigrated?
Note that, besides her quirky use of the word "derivative", Hilden's position seems to suppose that the bundle of rights currently provided to copyright holders by the Copyright Act is somehow Constitutionally inevitable, as if the framers assumed from the beginning that "the exclusive right" would have the exacty scope that it now has. And, though she doesn't say it explicitly, she nowhere recognizes that the rights granted to copyright holders were, at least in theory, granted by the public, and that the raw material from which they were made was the public's own rights. This consideration can be the start of an analysis that agrees in some respects with Hilden's but goes beyond it.
Copyright is a monopoly in derogation of public right. At least in theory, the public, when granting the copyright, agrees for a limited time to refrain from exercising its full rights in the copyrighted work. Since the public's First Amendment freedoms at their core are not alienable at all, the rights that are temporarily surrendered are presumably on the margins of the public's First Amendment rights: rights the public feels it can afford to forego for the time being in order to have more freely-usable literary expression down the line.
This theory distinguishes "core" First-Amendment freedoms (which cannot be alienated even with the public's consent) and "peripheral" First-Amendment freedoms, which can be derogated to a copyright holder temporarily. Under this theory, a pamphleteer who writes his own opinion in his own words, quoting no one, can be said to be exercising his core First Amendment rights. Someone who reads the pamphleteer's pamphlet aloud in public, letting the pamphleteer's words speak for him, is exercising one of the peripheral rights that is reserved to the copyright holder. This seems to be the distinction that Madame Justice Ginsberg was trying to make in her opinion in Eldred v. Ashcroft:
The First Amendment securely protects the freedom to make--or decline to make--one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. Eric Eldred, et. al., v. John D. Ashcroft 537 U.S. 186, III.So this theory allows us to make a distinction, between "core" and "peripheral" freedoms, similar to the distinction between first-class and second-class Constitutional rights made by Julie Hilden or to the distinction between making one's own speeches and making other peoples' speeches made by Madame Justice Ginsberg. It remains to examine how workable this theory is. To what extent can "making other peoples' speeches" be considered a "peripheral" rather than a "core" First Amendment freedom? Have we come to an agreement with Julie Hilden by an alternative route?
Freedom of worship is a central First Amendment freedom. Yet worship, as widely practiced in the United States, is all about "the right to make other people's speeches"--to read the words of the Scriptures and to sing the words and melodies of poets and singers of past generations. So already we have found a right to make other people's speeches on which the First Amendment bears very heavily indeed, something that Justice Ginsberg's offhand dismissal of making other people's speeches seems completely unaware of. Still, the Copyright Act includes an exemption (17 USC §110 (3)) for performances and displays "in the course of services at a place of worship." (The exemption only covers "performance" and "display". Reprinting a copyrighted text in the leaflet or booklet requires permission.)
Worship has a special exception; the Act would not have passed Congress without it. But what of our hypothetical example of a pamphleteer and his reader? Someone who reads a newspaper editorial on a street corner without permission is prima facie in violation of the copyright holder's exclusive right "to perform the copyrighted work publicly." But isn't this why we have newspapers and pamphleteers in the first place? To give voice to the voiceless? So we must wonder whether the 1976 copyright act, which changed a prior right of public performance for profit into an unqualified right of public performance did not unlawfully derogate some of what our theoretical scheme designates a "core" First Amendment freedom. So our theory does not necessarily support Julie Hilden's apparent assumption that the right of public performance as it now exists is Constitutionally perfect simply because it favors rightsholders over performers. Our theory holds that the public hands over some of its rights temporarily to the rightsholder, but it doesn't prescribe how broad or narrow those rights should be.
Continuing with the theory: Perhaps section 107 ("fair use") of the Copyright Act would excuse our street-corner crier. We finally come to the chief difficulty. Our theory, distinguishing between "core" First Amendment freedoms, which are unalienable, and "peripheral" First Amendment freedoms, which the public can forego temporarily, assumes that the public truly and freely consented to the identification and derogation of its "peripheral" freedoms: that the lawmaking process was not corrupted in any way by money or special interest. Yet this is not self-evidently the case. Furthermore, the theory assumes that the derogation of the "peripheral" freedoms is temporary; that all copyrights will expire after a reasonable time, allowing the pubic to enjoy its full rights in every work. Yet it remains to be seen whether the powerful interests who lobbied for the Copyright Term Extension Act (CTEA) and the Uruguay Round Agreements Act (URAA) will ever permit their valuable copyrights to expire if it is in their power to prevent this from happening.
The purpose of copyright is to enlarge the public domain in expression. The CTEA delayed the expansion of this public domain. The URAA actually reduced its size. The political process ought to be sufficient to defend the public's freedoms and its interest in an expanding public domain in expression. Yet it is not clear that the political process can truly account for the public interest in these matters, and the courts, except on one point in the case of Golan v. Gonzales, have washed their hands of the matter. Julie Hilden's theory, that performers, exhibitors, and derivative authors somehow deserve to be deprived of their rights leaves no room for the political process, (other than to speculate that is might lead to "an assault upon, not a defense of, the traditional contours of copyright law") and hence no room to take account of how the political process might be corrupt.