Copyright as Trade Regulation

B. Access to Copyrighted Works

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B. Access to Copyrighted Works

In determining whether a defendant has engaged in copyright infringement, courts ask whether he or she had “access” to the copyrighted work so as to determine whether he or she copied it. This stands to reason, for it would be impossible to copy a work without having seen it (or, in the case of music, having heard it). For this purpose, the law defines “access” as the reasonable opportunity to view (or hear) a copy of a copyrighted work. One can imagine having perfectly legal access to that copy, as if, for example, one were to buy a copy of a copyrighted novel. But buying a copy of a novel does not give the buyer the right to use the copyrighted work “fixed” in that copy—i.e., the creative expression itself. As section 202 of the Copyright Act provides, “[o]wnership of a copyright … is distinct from ownership of any material object in which the work is embodied.”49 The copy is one thing; the expression is quite another. Thus, for most purposes, the word “access” indicates an interaction between a human being and the expression contained within a copy of a copyrighted work.

Obviously, copyright owners want human beings to interact with their expression, but they want to control the terms of that interaction, too. Exactly one hundred years ago, a publisher testifying before Congress talked of binding the reading public by a contract placed on the first page of a book, “prohibiting [them] from doing anything with [the] book except reading it themselves.”50 Authors and publishers want the same thing today: They want people to buy and read copies of their books, but they do not want people to engage in any further interaction with the expression inside. To quote Professor Yochai Benkler, authors and publishers want people to be “consumers” of copyrighted expression—not “users” of it.51

To a significant extent, copyright law gives authors and publishers what they want. Section 106 of the Copyright Act gives creators “the exclusive rights … (1) to reproduce the copyrighted work in copies …; (2) to prepare derivative works based upon the copyrighted work; [and] (3) to distribute copies … of the copyrighted work to the public …”52 Owners of copyright in qualifying types of works (including books) also receive “the exclusive rights … (4) … to perform the copyrighted work publicly; [and] (5) … to display the copyrighted work publicly.”53 Any such “access” to a copyrighted work must be bought and paid for—or must wait until the expiration of the copyright. As the Supreme Court has instructed, “copyright law ultimately serves the purpose of enriching the general public through access to creative works,”54 but this purpose is served by providing the public with unauthorized access only “after the limited period of exclusive control has expired.”55 For the duration of the copyright term, copyright owners have the right to require payment in return for access, or even to refuse such access altogether.56 Indeed, courts have a word for unauthorized access to a work during its term of copyright: “infringement.”57

So far as courts are concerned, construing access as “access, eventually” is the only way to “enrich[ ] the general public through access”58 while promoting “the encouragement of learning.”59 On the one hand, copyright law is supposed to induce creation (and therefore encourage learning) by giving copyright owners the right to exclude the public from interacting with their works in ways prohibited by the statute. On the other hand, copyright law is supposed to grant the public the right to interact with copyrightable works. On their face, the two purposes are inconsistent. They “oppose each other,” as Professor Glynn Lunney has observed, “with exactly equal force.”60 Courts have responded to this “paradox” by placing a finger on the scale—“by implicitly presuming that more incentives are desirable in the absence of some unusual need for access”61 during the copyright term. In other words, in the tug of war between inducement and access, inducement almost always wins.62

If providing the public with access to copyrighted works is, like fair use, a “bizarre … departure”63 from the rule that inducement of creation flows from the grant of more and broader property rights, then one cannot help but feel that the courts are missing something very important about access: Access is not something that by its nature must be withheld entirely from the public until the end of the copyright term. Access is very much like property itself: it is not absolute; it is qualified. That is, access to some of a copyrighted work can be granted to some of the public for some purposes without sacrificing the public interest in the encouragement of learning. We know this is so because in sections 107 through 122 of the Copyright Act, Congress has enacted pages of limitations on the broad rights listed in section 106. For the most part, Congress has defined those limitations very narrowly, but it need not have done so. Congress could have provided creators with fewer rights, thus providing the public with more access to the fruits of creation. Congress also could have asked whether there might be other public interests in copyright, requiring it to factor those interests into the balance.

If, as I argue, the public good does not always and only reside in the satisfaction of demands for private reward, then lawmakers must begin to ask themselves what other values might comprise the “public interest” in copyright. Questions like this have been asked (and answered) before. Congress and the courts have spent more than a century describing the public interest, not only in enacting and interpreting the Copyright Act, but also in enacting and interpreting such federal statutes as the Sherman Act of 1890,64 the Clayton Act65 and the Trade Commission Act of 1914,66 the Communications Act of 1934,67 the Lanham Act of 1946,68 the Cable Television Consumer Protection and Competition Act of 1992,69 and the Telecommunications Act of 199670 (to name a few). These statutes were not enacted pursuant to Article I, Section 8, Clause 8 of the Constitution,71 and they do not create rights in “original works of authorship.”72 They do, however, regulate the behavior of participants in the markets in which copies of copyrighted works are bought and sold—markets in which copyright owners take a particular interest.73 And as it happens, the public has an interest in the operation of those markets as well.

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