ERIC Number: ED328913
Record Type: RIE
Publication Date: 1990-Nov
Reference Count: N/A
Does Freedom or Do Monopolies Better Foster Expression: The Problem of Pre-Publication Rights of Authors.
The Constitution empowers Congress to protect the rights of authors. There is disagreement, however, over whether Congress may grant authors a limited monopoly on their works or may regulate authorship by permitting reasonable public access to creative works. The traditional view of expansive pre-publication rights for authors is supported by those with interests in: (1) protecting a work before it is published; (2) assuring that the work is ready for publication; and (3) guarding authors' control over the timing of publication. On the other side are public interests in: (1) commenting on matters of public concern; (2) being exposed to information, even absent publication; and (3) being exposed to information in raw, unedited form. The Copyright Act of 1976 codified the traditional distinction between expression, which is legally protected, and ideas, which are not. Under the Act, pre-publication rights of authors remain unsettled. Actions for misappropriation of unpublished works generally fail. Some contract-related suits may be preempted under the Act. Authors' suits for invasion of privacy are not recognized in all states, and may be preempted under the Act. The United States Supreme Court has held that an author's right of first publication outweighed the right of "fair use" by another publisher. The controversy goes to the heart of how best to foster robust debate in a democratic society. Students who contemplate becoming professional writers should be informed of this debate over the rights of authors. (Seventy-six notes are included; 39 references are attached.) (SG)
Publication Type: Speeches/Meeting Papers; Information Analyses
Education Level: N/A
Authoring Institution: N/A
Identifiers: Copyright Law 1976; First Amendment; Professional Writing; Supreme Court; Unpublished Materials
Note: Paper presented at the Annual Meeting of the Speech Communication Association (76th, Chicago, IL, November 1-4, 1990).