In Harper & Row, Publishers v. The Nation Enterprises, the Supreme Court was presented questions concerning the interplay of copyright and the first amendment—whether the first amendment requires that the scope of copyright protection for a nonfiction work be narrowed, and whether the first amendment should prevail over copyright in a fair use case in which the copyrighted material is politically significant. This article focuses upon the potential tensions that exist between copyright and the first amendment, and the arguments for a "public interest" or first amendment exception to the proprietary rights of a copyright holder. In particular, this article examines the facts and holdings in Harper & Row, including the Court's application of the fair use doctrine and argues that the Court properly rejected the use of the public interest consideration apart from fair use analysis. Application of this exception would result in irreparable damage to a copyright system that has developed a durable and constitutionally satisfactory internal method of accommodating and enhancing first amendment values with only a modicum of hindrance to the accessibility of politically significant information.
Greg A. Perry,
Copyright and the First Amendment: Nurturing the Seeds for Harvest: Harper & Row, Publishers v. Nation Enterprises, 105 S. Ct. 2218 (1985),
65 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol65/iss3/9