May government deny copyright / trademark production to
racist,S ocialist, etc. works?
L10MXP1 at WPO.CSO.NIU.EDU
Wed Mar 13 09:34:15 PST 2002
Interesting. I'm not sure I have an answer I like but I do have more
questions. First, cannot the government set up a subsidy program with
content-based limits? Isn't that what the spending clause cases say? If
so, why isn't trademark such a targeted subsidy? The Constitution does
not require trademark legislation and the limits on protection are in
the federal statute. The Supreme Court looked at a super-trademark in
the Gay Olympics Case and (to my chagrin) said that Congress had the
right to limit even non=commercial speech by forbidding most promotional
use of the world "Olympic" because substitute words exist. It did use a
First Amendment analysis, but not the public forum category.
As for Copyright, baseline does matter. I read the clause as giving
Congress a very limited power: power to create rights to exclude for
limited times only for the purpose of "promoting the progress of science
and the useful arts." The underlying "property right" lies in the
public. As my forthcoming article states, "progress" in 1789 meant
"spread" ie distribution. Congress has a limited power to create
copyrights only to the extent such statutes promote the distribution of
knowledge ("science" in 1789 terminology). Now, I don't think this
involves an ok on racist criteria. But it may allow some content related
differences in treatment. For example, books containing "false facts"
might be outside copyright. Advertisements might not need the copyright
subsidy to be distributed and so might be outside copyright etc. If
someone has a different interpretation of "progress," that
interpretation may be even more content related. This is not, of course,
a polished argument. I'm just thinking outloud and would appreciate all
the criticism available from the experts out there.
Northern Illinois Univ., College of Law
DeKalb, Illinois 60115
815-753-1160; (fax) 815-753-9499
mallapollack at niu.edu
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