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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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 Copyright's Free Speech Burdens

 Copyright's Free Speech Burdens

(p.109) Chapter Six Copyright's Free Speech Burdens
Copyright's Paradox

Neil Weinstock Netanel (Contributor Webpage)

Oxford University Press

This chapter examines more precisely when and how copyright does—and does not—burden speech. We can divide copyright's speech burdens into three distinct, yet interrelated categories. First, copyright imposes a “censorial” speech burden. Because of copyright, speakers are often unable to convey their message effectively and audiences unable to obtain access to certain expressive works. Second, copyright imposes a “prohibitive cost” speech burden. Even a copyright owner who is willing to license sometimes insists on a license fee a particular speaker can ill afford. Third, copyright results in a “distributive” speech burden. The copyright regime as a whole imposes differential burdens on different types of speakers. Highly concentrated copyright industries controlling vast inventories of copyrighted works enjoy the preponderance of copyright's benefits. And copyright's free speech burdens fall most heavily on individuals and independent speakers. While some aspects of copyright's speech burdens are quite straightforward, others are surprisingly complex.

Keywords:   copyright, free speech, censorial, speaker, speech burden, copyright industries

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