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From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law

From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law

Ginsburg, Jane C., "From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law" . Journal of the Copyright Society of the USA, Vol. 50, p. 113, 2003

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Abstract

    This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in ? 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if Congress may qualify the right's exclusivity by imposing a variety of compulsory licenses, or outright exemptions, it is one thing to introduce specific and narrow gaps in coverage, quite another to design a system that pervasively fails to afford meaningful exclusivity. The latter course would be inconsistent with the constitutional design.

    Thus, the exclusive Right today is not only a copy-right, but an access right, and the Essay explores the implications of that claim. It does not contend that the access right will or should supplant copy-right. On the contrary, the claim is that the access right is an integral part of copyright, and therefore should be subject to exceptions and limitations analogous to those that constrain copy-right. Just as a 21st-century copyright regime that did not regulate access would be unrealistic and incomplete, so a regime that limits all availability to works to the copyright owner's terms would undermine the progress of Science that the author's exclusive Right is intended to promote. Without an appropriate fair use limitation, the access right under ? 1201 becomes more than a necessary and integral component of copyright law. It becomes instead an Uber-copyright law, rigid as to specified exceptions, and therefore freed of further inquiry into the balance of copyright owner rights and user privileges that the fair use doctrine ? and the general structure of copyright law ? require.

Facts on copyright

  • Fair use and fair dealing Main articles: fair use and fair dealing Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. Section 107, permits some copying and distribution. The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. In the United Kingdom and many other Commonwealth countries, a similar notion of fair dealing was established by the courts or through legislation. The concept is sometimes not well defined, however in Canada, private copying for personal use has been expressly permitted by statute since 1999. In Australia, the fair dealing exceptions under the Copyright Act 1968 (Cth) are a limited set of circumstances under which copyright material can be legally copied or adapted without the copyright holder's consent. Other technical exemptions from infringement may also apply, such as the temporary reproduction of a work in information technology.
  • Copyright subsists for a variety of lengths in different jurisdictions, with different categories of works and the length it subsists for also depends on whether a work is published or unpublished. In most of the world the default length of copyright for many works is either life of the author plus 50 years, or plus 70 years. Copyright in general always expires at the end of the year concerned, rather than on the exact date of the death of the author.
  • In the United States the AHRA (Audio Home Recording Act Codified in Section 10, 1992) prohibits action against consumers making noncommercial recordings of music, in return for royalties on both media and devices plus mandatory copy-control mechanisms on recorders.

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