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Copyright's Paradox$
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Neil Weinstock Netanel

Print publication date: 2008

Print ISBN-13: 9780195137620

Published to Oxford Scholarship Online: May 2008

DOI: 10.1093/acprof:oso/9780195137620.001.0001

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 Is Copyright “the Engine of Free Expression”?

 Is Copyright “the Engine of Free Expression”?

(p.81) Chapter Five Is Copyright “the Engine of Free Expression”?
Copyright's Paradox

Neil Weinstock Netanel (Contributor Webpage)

Oxford University Press

The Supreme Court has labeled copyright “the engine of free expression.” Copyright serves in that role in three fundamental ways. First, copyright serves a “production function.” It provides an economic incentive for the creation and dissemination of original expression. Second, copyright has an important “structural function.” It supports a sector of authors and publishers who look to the market, not government patronage, for financial sustenance and who thus gain considerable independence from government influence. Third, copyright has an “expressive function.” By encouraging authors, it reinforces the social and political importance of individuals' new, original contributions to public discourse.

This chapter argues that copyright continues to underwrite free speech through each of its production, structural, and expressive functions. Yet the chapter also qualifies copyright's “engine of free expression” moniker. Copyright's support for free speech is far more complex and, in some ways, more limited than the Supreme Court's often‐cited paean suggests.

Keywords:   copyright, authors, publishers, public discourse, free expression, Supreme Court, market

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