Copyright is no longer a matter of "promoting the progress of science" in the words of the U.S. Constitution. It is now more than ever before a matter of trade. Furthermore, under the WTO's TRIPS Agreement, we now have a global copyright (G©) regime.
The globalization of copyright law destabilized previous balances. The shift to a trade environment requires us to reevaluate the previous balance. The concern explored in this article is that the old foundations will collapse under the heavy weight of global forces. The concern is that local culture, access to information, research and free speech in general, will be left unattended, in the face of expanding copyright.
Accordingly, this article examines the intersection of copyright law and free speech on the global level. A normative evaluation of G© law is conducted: it was detached from its previously underlying philosophies and is now void of a coherent theory, other than that of a trade ideology. The framework of G© is then applied to examine the conflict between copyright law and freedom of speech: while copyright has become global, free speech jurisprudence remained local. The result is that the answers given to the alleged copyright/speech conflict in some developed countries that copyright is the engine of free speech, do not necessarily fit other places.
The copyright/speech conflict is a legal and political site where global norms of trade collide with local culture, resulting in a GloCalization. When copyright law is imposed over countries without a strong tradition of free speech, the trade benefits to the North have a cost of limiting access to information, use thereof, and the formation of new speech, or more generally, it has a cost in freedom, in the South.
Date of this Version
Michael D. Birnhack, "Global Copyright, Local Speech" (January 2008). Tel Aviv University Law Faculty Papers. Working Paper 60.