Value Judgment and Institutional Management of Intellectual Property and Freedom of Speech

Author: USA IP Research Team                                                      Published date: 11/28/2025

Abstract:

Freedom of speech and intellectual property are closely interconnected and inseparable. The law must fully protect people’s freedom of speech so that their creative ideas are not infringed upon, interfered with, or improperly prohibited. At the same time, it must also protect their creative intellectual achievements so that the interests of right holders are not harmed by others exercising freedom of speech. These two aspects form a dialectical unity. However, freedom of speech is not a right without any restrictions.

Keywords: freedom of speech; intellectual property; value judgment; institutional management

I. Value Judgment of Freedom of Speech

Freedom of speech refers to the right of individuals to transmit ideas, viewpoints, claims, and consciousness through language, writing, bodily movements, symbols, and other forms, whether vocal or silent. It is also an important constitutional right of citizens. Freedom of speech is an innate and inalienable natural right and an indispensable right for human survival and development. Almost all national constitutions and some international conventions explicitly provide for citizens’ right to freedom of speech.

It is evident that countries around the world and international human rights organizations generally regard freedom of speech as an important right of citizens. It is not only clearly stipulated in national constitutions but also in international human rights conventions. The development and progress of human society depend on normal learning and intellectual exchange among people. At every critical stage of social advancement, sparks of free thought have played an irreplaceable role. For example, during China’s Warring States period, the “Hundred Schools of Thought Contend” emerged during the transition from slave society to feudal society; similarly, during the late European Middle Ages, the “Renaissance” emerged during the transition from feudal society to capitalist society.

Clearly, freedom of speech is a fundamental right involving a very broad scope. In the field of intellectual property, people may express their ideas, viewpoints, and claims in certain forms to produce reproducible works; they may also integrate creative ideas into industrial fields to improve existing products or create unprecedented patented technologies; they may also create distinctive signs based on ideas and use them as trademarks.

“Thus, freedom of speech and intellectual property are closely connected and inseparable. The law must both fully protect freedom of speech so that creative ideas are not infringed, interfered with, or improperly prohibited, and at the same time protect creative intellectual achievements so that the interests of rights holders are not harmed by others exercising freedom of speech. These two aspects are dialectically unified. However, freedom of speech is not an unrestricted right; for example, Article 19 of the International Covenant on Civil and Political Rights clearly provides for this.”¹

II. Consistency Between Intellectual Property and Freedom of Speech

Intellectual property and freedom of speech are essentially consistent and compatible. Intellectual property does not restrict freedom of speech; rather, it encourages people to actively engage in invention and innovation. In the field of copyright, authors disseminate their ideas, viewpoints, claims, and will through original expressions, which helps enrich the intellectual treasury of humanity, promotes the renewal of human thought, and facilitates the dissemination of advanced ideas. Moreover, copyright law does not protect ideas and intent themselves, thereby institutionally safeguarding freedom of access to ideas and promoting the development of freedom of speech.

At the same time, to protect people’s ability to absorb and learn from others’ intellectual achievements, the law establishes systems such as statutory licensing and fair use, allowing people to lawfully use others’ intellectual achievements as sources for their own creative ideas and theories.

In the field of patents, inventors express their concepts and designs in the form of technology, and the law grants them exclusive rights over such technologies. However, statutory licensing and compulsory licensing mechanisms are also provided. People may freely use others’ patented technologies or concepts in scientific research and experimentation.

Therefore, in this sense, people in the patent field can still freely disseminate ideas, communicate, and learn. The law does not restrict or prohibit freedom of speech in this regard.

In the trademark field, after registering public words, graphics, letters, numbers, three-dimensional symbols, and color combinations as trademarks, individuals obtain exclusive rights. However, others may still use these symbols in non-commercial ways as tools for expressing ideas, intentions, and viewpoints. For symbols that merely indicate the origin, quantity, quality, or composition of goods or services, others may also use and disseminate ideas about such products in commercial activities. Likewise, the law also provides mechanisms such as fair use to limit trademark owners’ exclusive rights. Therefore, freedom of speech and intellectual property are not contradictory; they are harmonious and consistent.

III. Contradictions Between Intellectual Property and Freedom of Speech and Their Institutional Management

Everyone enjoys freedom of speech, but not everyone possesses intellectual property rights. Intellectual property is an exclusive right belonging to a minority, and it inevitably conflicts with the egalitarian nature of freedom of speech.

Legal philosophers believe that all things develop through contradiction and struggle; this is a general law of development. Intellectual property and freedom of speech are no exception. In order to ensure the normal exercise of freedom of speech, the law imposes certain restrictions on intellectual property rights. However, due to uneven development, these restrictions have also undergone qualitative changes. In particular, with the development of science and technology, intellectual property has expanded almost everywhere, and some mechanisms balancing intellectual property and freedom of speech have become ineffective, especially in the Internet era.

Usually, intellectual property objects are considered intellectual achievements—special symbols formed by the human brain through creative thinking and cognition or transformation of the objective world.²

The advent of the Internet era has greatly changed people’s lifestyles. Anyone with an internet-connected computer can instantly access vast amounts of information anytime and anywhere. It also provides a borderless space for communication, where people can freely express themselves and ideas can circulate without restriction. The Internet has created a democratic platform for participation and communication.

However, because the law includes certain technological measures and devices that are not themselves intellectual achievements within copyright protection, the scope of protection has expanded, sometimes at the cost of restricting freedom of speech. The original balance of copyright interests has been disrupted, and doctrines such as fair use have become less effective.

As some scholars point out: technological protection measures make the originally lawful rights of access, browsing, reading, and appreciation of works practically meaningless, and even when users obtain access permission, they may still face restrictions such as limited reading times.

Clearly, right holders strengthen copyright protection through technological measures. Traditional copyright assumes that works must rely on tangible media and are later distributed through copies, public performance, or broadcasting. However, when works are digitized or exist only in digital form, traditional copyright systems struggle to cope. It becomes difficult to detect and enforce infringement.

Access to electronic music, art, literature, or materials allows users to modify and copy works freely and distribute them globally. Anyone receiving electronic information may become a re-creator or distributor. The only way for original creators to recoup investment may be through ethical consensus, encryption technologies, click-on contracts, and market strategies.

Thus, while technological measures used by right holders are understandable, treating all users uniformly regardless of use is inappropriate. Intellectual achievements are built upon predecessors’ work and inherently contain public knowledge resources created by humanity. These resources should not be monopolized. People should be able to freely use them for further creation, communication, and dissemination, and such freedom of speech should not be restricted or deprived.

In the information age, reading has shifted from paper to digital formats. Clicking online to access information involves temporary copying in computer memory. Whether such automatic copying constitutes copyright reproduction is debated internationally. In October 2022, the Australian High Court’s final judgment in Sony v. Stevens provided a rational response in defense of freedom of speech.③

In this case, Sony manufactured and sold PlayStation consoles and games in Australia, using region-locked control codes to prevent piracy. A user named Stevens supplied mod chips allowing users to bypass these restrictions and play games regardless of region codes. Sony sued him for circumventing technological protection measures.

The key issue is not only the outcome but how to balance the interests of rights holders and the public, ensuring freedom of speech is maintained so that users can read and access digital works without infringement claims.

As scholars note, technological protection measures allow control over access to works, making public access dependent on authorization and decryption. Reasonable access to knowledge and information is the foundation of freedom of speech, and fair use is an important legal mechanism ensuring public access to knowledge.

For example, in traditional copyright systems, libraries allow free borrowing of books without repeated payment. However, in digital environments, electronic libraries may use technological measures to restrict access, forcing users to pay for each use, increasing the cost of accessing information. This undermines free dissemination of knowledge and infringes upon the value of freedom of speech embedded in fair use.

Clearly, technological protection measures have shaken the foundation of intellectual property—its balance of interests. Education and learning are fundamental to social progress. In the traditional copyright era, individuals and schools could freely quote and use prior works for research and teaching. In the digital era, however, rights holders may block nearly all forms of use, requiring payment for every access.

This not only increases the cost of learning and research but also seriously affects freedom of speech, posing a comprehensive challenge to the legitimacy of intellectual property in the network age.

References

1. Wang Qian. Introduction to Intellectual Property Law. Beijing: Renmin University of China Press, 2022, p. 26.

2. Li Mingde. Trademark Law Research. Beijing: Law Press, 2023, p. 37.

3. Kong Xiangjun. Principles of Anti-Unfair Competition Law. Beijing: Law Press, 2022, p. 56.