Copyright in the EU and U.S.: What 'Access-Right'?

Copyright in the EU and U.S.: What 'Access-Right'?

Heide, Thomas P., "Copyright in the EU and U.S.: What 'Access-Right'?" . Journal of the Copyright Society of the USA, Vol. 48, No. 3, Spring 2001

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    Whether copyright contains an "access-right" is fast becoming a ripe issue. One U.S. court has indicated that copyright law grants copyright owners the "'right to control' access" to copyrighted materials. A noted copyright scholar has recently made the claim that whilst the "access-right" has only recently become an integral part of copyright, this "right" was nevertheless implicit in certain rights found under copyright law even before mass copying devices became available. The "New or Evolving 'Access Right'" is also one of the main topics of the ALAI 2001 Congress entitled "Adjuncts and Alternatives to Copyright" to be held in New York City this summer. But even outside of copyright, other "access-rights" are emerging. Austria, for instance, has included a "right of access control" in its transposition of the EU Conditional Access Directive. This article seeks to show that the traditional rights under copyright have not contained, and still do not contain, an "access-right" and that the issue of the "access-right" is instead one of characterisation. Once properly characterised, it becomes evident that the ability to control access can arise from multiple rights in addition to copyright law. Moreover, the recent inclusion of the "access-right" within copyright does not represent an evolution of copyright to extend to new forms of exploitation but rather the incorporation of a completely new rights structure into copyright law - one closely akin to that underlying cinemas and theatres. This recent development raises the key issue central to the debate over the "access-right": which rights structure will come to regulate the use of creative materials and information products in the digital environment - copyright, a (contorted) copyright system based on the cinema/theatre model, or something else altogether?

Facts on copyright

  • No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. Later acts amended US Copyright law so that making 10 copies or more is considered commercial, and the Digital Millennium Copyright Act effectively permits DRM (Digital Rights/Restrictions Management) to prevent manufacture, importation, or distribution of recording devices if the device bypasses an access or copy control.
  • Once an idea has been reduced to material form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape or a letter), the copyright holder is entitled to enforce his or her exclusive rights.
  • With the exception of a small number of countries which still require notices to be on works, this requirement is generally optional except for works which were originally created before the particular country became a member of the Berne Convention (the members of which are collectively known as the Berne Union).

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