Vol 7 No 1 - Roger Williams University School of Law

communicating—in constructing knowledge and meaning. Themost obvious example might be when I copy an image and displayit on my website. If that use is purely commercial then anychance of a fair dealing or fair use defence is weak, yet the moreits shades into political or social commentary or research the morelikely we are to have an allowable use.Software which is integral to the digital communicativeprocess is also an interesting example. Software is a form ofdiscourse, making things manifest or allowing them to be seen; itis part of the speech or communicative process in the digitalenvironment. If I propertize software through copyright or patent,I allow a certain degree of control over communication.In the United States, those adamant that IP rights mustaccommodate the necessity of consuming information anddemocratically distributed intelligence—the cultural or socialaspects as opposed to the economics of information—have focussedon First Amendment arguments. In order to speak andcommunicate or think and construct knowledge in the new digitalenvironment, we need to be able to access and distributeinformation. “A broad dissemination of principles, ideas, andfactual information is crucial to the robust public debate andinformed citizenry that are ‘the essence of self-government.’ Andevery citizen must be permitted freely to marshal ideas and factsin the advocacy of particular political choices.”152 This is theessence of the debate, although the desire for informational libertyor diversity is not limited to just the political realm but alsoencompasses the economic, social and cultural plane.A. Reconciling Free Speech and CopyrightIn Harper & Row Inc. v. Nation Enterprises, the UnitedStates Supreme Court explained “[t]he Second Circuit noted,correctly, that copyright’s idea/expression dichotomy “[strikes] adefinitional balance between the First Amendment and theCopyright Act by permitting free communication of facts whilestill protecting an author’s expression.” No author may copyrighthis ideas or the facts he narrates.”153 In another passage theCourt referred to “copyright as the engine of free expression,” as it152. Harper & Row Publishers Inc. v. Nation Enters., 471 U.S. 539, 582 (1985)(Brennan, J., dissenting ) (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)).153. Harper & Row, 471 U.S. at 556.