Copyright and Free Speech

Kevin Smith has blog about a recent lecture he attended given by Anthony Falzone. These paragraphs caught my attention:

In setting the context for his discussion of fair use, Falzone made the fairly common point that copyright is a monopoly, which is something we usually disapprove of in the US as economically and socially inefficient and harmful. Jamie Boyle, in his book on The Public Domain, discusses the reluctance felt by Jefferson and Madison over copyright for this very reason. But Falzone went a step further to stress that copyright is a monopoly over speech. For me this fell into the category of things I knew but had not fully considered; Tony helped my really think about what it means to give someone a monopoly over expression in a nation where free expression is the first guarantee in our Bill of Rights.

The message I came away with is that fair use is not really primarily about who has to pay whom, when and how much. Rather, fair use is a safety valve that protects one of our most fundamental values. Do we really want a copyright owner, for example, suppressing an expression of political speech such as the Barack Obama HOPE poster or the Ben Stein movie Expelled? From this perspective, fair use is a fundamental and absolutely necessary part of the fundamental structure of copyright in the context of American values. It is an incentive for creative expression just as much as the exclusive rights themselves are. Without fair use, I asked myself, would copyright’s monopoly be unconstitutional?

He goes on to talk about our (Universities/libraries) need to exercise and protect fair use and not cave in at the first threat of a law suit.