“Speaking Truth to Power”: copyright and the control of speech

Macmillan, Fiona (2020) “Speaking Truth to Power”: copyright and the control of speech. In: Bassini, M. and Pollicino, O. and Riccio, G.M. (eds.) Copyright and Fundamental Rights in the Digital Age: A Comparative Analysis in Search of a Common Constitutional Ground. Cheltenham, UK: Edward Elgar. ISBN 9781788113878. (In Press)

Abstract

The division between public and private law is the legal system’s own special take on a larger debate about the meaning and impact of attempts to make and maintain the distinction between what is properly located in the public sphere of life and what is, by its nature, private. As much as we might question its theoretical and empirical validity, the distinction between public and private law exerts normative force over attempts to theorize and understand law in a variety of areas. At some level, and as this chapter tries to demonstrate, we know there is a problem here. We know that this mode of organising and categorising law creates systemic dissonance that is never resolved because the eye of law, focussed on the maintenance of this division, fails to see the problem. The various laws regulating speech or speech acts raise particular issues in this respect. They must always focus on a moment that is, in some sense public – or, perhaps it would be better to say, that they do not attach in the sort of situations that might be considered to be clearly private. Investigating the proposition that copyright should be understood as a speech right and focussing on its character as a property and investment right, this chapter considers what role freedom of speech principles should play in copyright law.

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