Safety valves

I came upon a public policy report entitled "The Progress of Science and Useful Arts: Why Copyright Today Threatens Intellectual Freedom" from the Free Expression Policy Project. (Report available for download here.) It addresses the intersection between free speech and copyright and discusses four "free-expression safety valves" which make up one component of careful balance between copyright and free expression. These are the (1) idea/expression distinction, (2) fair use doctrine, (3) first-sale rule, and (4) public domain. Interestingly, the first two have been defined as "traditional contours" of copyright by the Supreme Court (in Eldred). The last two have not officially be recognized, but Golan v. Ashcroft, which is being litigated by CIS, hopes to change that.

Another thing I found interesting, and need to be reminded of from time to time, is something the report refers to as "Intellectual Property Talk" (citing Siva Vaidhyanathan as the source of this concept). By "IP Talk," the report is referring to the relatively recent use of the word "property" when describing patents, trademarks, copryights and trade secrets. Evidently, the use of the phrase "intellectual property" originated in 1967 with the UN's WIPO (World Intellectual Property Organization). But copyright "was not meant to be a 'property right' as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monoppoly in exchange for universal use and access.'" That's a point not to be forgotten.