Copyright can be used to enact censorship. Critics of copyright argue that copyright has been abused to suppress free speech, as well as criticism, business competition, academic research, investigative reporting (and freedom of press) and artistic expression.
The most common form of censorship by copyright concerns the abuse of the Digital Millennium Copyright Act (DMCA) either by copyright holders or by the service providers. The DMCA forces web hosts to be overly sensitive to claims of copyright infringement and act as de facto gatekeepers, infringing upon fair use as well as facilitating abuse in the form of bogus copyright claims.
Reasons
Strong-arm deterrence tactic
The use of censorship of copyright has been described as a legal "strong-arm" tactic (guerrilla litigation) aimed at creating deterrents for future copyright infringement by educating the public about the copyright. This tactic does not require a trial, as the threat of litigation against financially vulnerable violators can often be sufficient. Sometimes such activities are called strategic lawsuits against public participation (SLAPP). This has also led to chilling effect, self-censorship or abuse from copyright trolls.
Censorship The lack of consequences for perjury in DMCA claims encourages censorship. This has caused temporary takedowns of legitimate content that can be financially damaging to the legitimate copyright holder, who has no recourse for reimbursement. As a consequence, DMCA has enabled copyright owners to "censor academic discussions and online criticism". It has also been used by businesses to censor competition. It has also been used to censor investigative reporting, and suppress political speech. This includes the use of it by parties in non-democratic states, which use international law to remove content from international (Western) platforms like YouTube. Modern copyright has been described as "an attractive weapon to chill speech".
In the context of American legislation, censorship by copyright has been said to violate the First Amendment; such abuse of copyright is supposed to be limited by fair use, but fair use has been found to be difficult to enforce due to chilling effects of copyright litigation and disparity of power between copyright holders and those seeking permission to use a work. In particular, protections related to satirical use are seen as inadequate.
Censorship by copyright has also been linked to reducing innovation, creativity, and limiting artistic expression. A study involving visual artists and professionals in the visual arts sector revealed that one-third have either avoided or ceased work in their domain due to worries about copyright infringement. Additionally, over half of the editors and publishers surveyed have dropped or reduced the scope of their projects because of these worries. A 2005 survey of documentary makers in Canada found that 85% of them said copyright is more harmful than beneficial for their field and that it threatens their ability to produce content.Kirwan Cox, Censorship by Copyright: Report of the DOC Copyright Survey, Rigaud, 2005 Such concerns have also hindered museums and libraries from digitizing and sharing cultural and scientific materials, including works for whom no living copyright holder could be identified but which are protected by the law by default (orphan works).The Art Institute of Chicago et. al, Comments on Orphan Works and Mass Digitization (4 February 2013)Sarah E. Thomas, Response by the Cornell University Library to the Notice of Inquiry Concerning Orphan Works, (23 March 2005) #12;
Suppression of historical and religious texts Copyright has also been used to restrict access to historical, religious, and esoteric texts, particularly by organizations that claim institutional ownership over works produced by their founders or members. Critics argue that when religious or fraternal organizations use copyright to limit distribution of philosophical, spiritual, or instructional texts — especially those written decades or centuries ago — the effect is censorship of cultural heritage rather than protection of commercial interests.
Notable examples include disputes over the literary estate of Aleister Crowley, where the Ordo Templi Orientis (OTO) has pursued copyright claims against publishers and distributors of Crowley's works, some of which were originally published in the early twentieth century. Similar disputes have arisen around texts from fraternal and initiatory organizations, where materials originally intended for educational use within the organization are restricted from broader scholarly or public access through copyright enforcement.
The tension between institutional copyright control and public access to historical religious texts has been cited as a factor in the growth of shadow libraries that specialize in esoteric and philosophical works, where communities of scholars and practitioners share texts they argue should be part of the public cultural commons.
Technology and laws that facilitate censorship
Abuse of law Most common form of censorship by copyright concerns abuse of the Digital Millennium Copyright Act (DMCA). That legislation forces web hosts to be overly sensitive to claims of copyright infringement, infringing upon fair use as well as facilitating abuse in the form of bogus copyright claims.
Other laws that have been criticized for similar problems include the European Union's Directive on Copyright in the Digital Single Market (Copyright Directive), and the EU General Data Protection Regulation (GDPR) and the concept of the right to be forgotten.
Automated copyright enforcement The increasing prevalence of online media has led to content hosting companies developing automated solutions for copyright enforcement to help copyright holders remove alleged infringement from their services. Such solutions, however, are overprotective due to difficulties related to defining legal uses such as quotations or fair use, as well as the lack of authoritative information about who is a legitimate rights holder for which copyrighted work. They are also designed from the perspective of assumption of guilt, as any claim made by copyright holders is automatically accepted, results in the takedown of allegedly offending material, and requires the accused to prove their innocence.
Moreover, the risks associated with making a false accusation are low: the person accused must first submit a counterclaim to establish their copyright ownership and then take private legal action to demonstrate actual harm. They must locate the other party in order to enforce any financial compensation awarded by the judiciary.
Consequentially, automated copyright detection systems built for and used by online video hosting services like Google's Content ID have been used by governments, companies and individuals to block critical reporting. In some cases, individuals have been known to play copyrighted music to disrupt streaming, recording or other activities with the intent of getting other users' videos taken down by automated systems.
Tools used in content moderation have been subject to similar criticism.
History and notable examples Earliest examples of the use of copyright law to enforce censorship relate to the British government invoking the monopoly of the Worshipful Company of Stationers and Newspaper Makers to suppress texts it deemed problematic, such as anti-Cromwellian and anti-Caroline satirical writings in the sixteenth and seventeenth centuries. To circumvent the Stationers' monopoly on print, contemporary activists used a handwriting (scribed) method of publication.
It has been argued that censorship by copyright is becoming increasingly more common in the Digital Age. It has also been called a major element of censorship found in democratic societies, otherwise critical of the concept of censorship. Hannibal Travis wrote that "copyright largely determines the accessibility and cost of information in a democratic society, and that it grants rights holders substantial powers of censorship through the threat of prosecution for infringement". Modern copyright laws and associated technologies developed to enforce it have been described as "wielded by powerful government and business officials as a weapon to censor independent news media and deter investigative reporting". Said laws and technologies have been generally developed in the Global North, and are abused there as well, but are even more commonly abused in the Global South, where traditions and protections of free speech are weaker.
Incidents described as censorship by copyright include: 1939: Adolf Hitler's Mein Kampf was published in the United States in an abbreviated English translation that left out anti-semitic and militarist portions that Americans were likely to find alarming. The future Senator Alan Cranston published his own annotated translation in order to expose Hitler's true thought to Americans. Hitler's American publisher, Houghton Mifflin, sued successfully for copyright violation, resulting in the discontinuation of sales of Cranston's version. 1998: Canadian documentary The Kid Who Couldn't Miss was withdrawn from distribution in 1998 by the National Film Board of Canada due to concerns that it would not generate enough revenue to pay for the renewal rights for its archival footage, which was required by copyright laws. Kirwan Cox called this ironic as "the public lost access to this film not because of political censorship [the documentary has been criticized by a number of Canadian politicians], but because of copyright censorship." 2001: In 2001, American computer scientist Edward Felten was threatened by the Recording Industry Association of America (RIAA), which invoked DMCA, threatening to sue Felten if he went through with his planned academic conference presentation on bypassing digital watermarks protecting media files; Felten withdrew his presentation. 2007: A YouTube video from Brian Sapient from the "Rational Response Squad" contained a segment from a NOVA program called "Secrets of the Psychics" which challenged the performance techniques of Uri Geller, an illusionist and self-proclaimed psychic. Geller demanded that YouTube take the video down, even though he claimed to own only three seconds of footage out of the entire thirteen-minute video. YouTube nonetheless removed Sapient's video and suspended his account and all videos associated with it. Electronic Frontier Foundation (EFF) represented Sapient and claimed that Geller's abused the Digital Millennium Copyright Act (DMCA) and eventually negotiated a settlement. 2007: New York City activist Savitri Durkee created UnionSquarePartnershipSucks.org, a website parodying the official website of Union Square Partnership (USP), a group backing extensive redevelopment of the Union Square area. In response, USP sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act (DMCA) improperly asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP also filed a copyright lawsuit against Durkee and later filed a claim with the World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name. Electronic Frontier Foundation (EFF) filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The website and domain were ultimately restored. 2007: The destruction of a recreation of the School of Magic and Wizardry from the J.K. Rowling's Harry Potter franchise during the Durga Puja in Kolkata; the festival organizers were sued by Penguin Books, the publisher of the book series. The Calcutta High Court ordered the structure demolished after the festival.