Essay: From having copies to experiencing works: The development of an access right in U.S. Copyright law

This essay addresses the copyright law's response to new forms of distribution of copyrighted works through the establishment of a right to control digital access to copyrighted works. This right is 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 devise (or to allow to persist) a copyright system that pervasively fails to afford meaningful exclusivity. The latter course would be inconsistent with the constitutional design to secure meaningful rewards and incentives to authors. 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 twenty-first 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 or equivalent limitation, the access right under § 1201 becomes more than a necessary and integral component of copyright law. It becomes instead an Über-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.