ArtI.S8.C8.1.5 Copyright and the First Amendment

Article I, Section 8, Clause 8:

[The Congress shall have Power . . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The Copyright Clause nominally restricts free speech by allowing for an author's monopoly to market his original work. The Court has recognized that some restriction on expression is the inherent and intended effect of every grant of copyright.1 However, that the Copyright Clause and the First Amendment were adopted close in time reflects the Framers' belief that copyright's limited monopolies are compatible with free speech principles.2 [T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.3

The Court has noted on several occasions that the copyright law contains two important First Amendment safeguards: (1) limiting copyright protection to an author's creative expression of ideas, but prohibiting protection of ideas in and of themselves; and (2) permitting fair use of a copyrighted work in certain circumstances, including for purposes of criticism, teaching, comment, news reporting, and parody. These traditional contours of copyright protection have foreclosed heightened First Amendmebnt scrutiny of copyright laws.4


  1.  Jump to essay-1Golan v. Holder, 565 U.S. ___, No. 10-545, slip op. (2012).
  2.  Jump to essay-2Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).
  3.  Jump to essay-3Harper & Row Publishers, Inc., v. Nation Enterprises, 471 U.S. 539, 558 (1985).
  4.  Jump to essay-4Eldred v. Ashcroft, 537 U.S. 186 (2003); Golan v. Holder, 565 U.S. ___, No. 10-545, slip op. (2012).