Rushton, Michael --- "Copyright and freedom of expression: an economic analysis" [2002] ELECD 49; in Towse, Ruth (ed), "Copyright in the Cultural Industries" (Edward Elgar Publishing, 2002)

Book Title: Copyright in the Cultural Industries

Editor(s): Towse, Ruth

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781840646610

Section: Chapter 4

Section Title: Copyright and freedom of expression: an economic analysis

Author(s): Rushton, Michael

Number of pages: 12

Extract:

4. Copyright and freedom of expression:
an economic analysis
Michael Rushton

4.1 INTRODUCTION

In its judgment in the case of Harper & Row v. Nation Enterprises,1 the US
Supreme Court held that The Nation magazine had infringed on Harper &
Row's copyright in the as-yet unpublished memoirs of former US President
Gerald Ford when it published an excerpt, supplied by an unauthorized source,
without license. In fact, Harper & Row had negotiated an agreement with Time
magazine to publish excerpts, but when The Nation's `scoop' was published,
Time cancelled its article and refused to pay Harper & Row the balance of its
account. The Nation attempted to persuade the court that its publication was
fair use, and that the constitutional principle of freedom of expression should
be applied, but the court declined to do this, and warned `it should not be
forgotten that the Framers [of the US Constitution] intended copyright itself to
be the engine of free expression'.2
The US Constitution grants Congress the power `[t]o promote the progress
of science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writing and discoveries'.3
Likewise, Britain's first copyright statute was `A Bill for the Encouragement
of Learning by Vesting the Copies of Printed Books in the Authors, or
Purchasers, or such Copies, during the Times therein Mentioned.'4 In each
country there was at least the appearance that the lawmakers saw copyright as
something to encourage, ...