Fair Use v. Fair Access
We are between quarters now, so the building is quiet (well, not actually, since the fountain replacement project is going full bore, but we are getting there). I am editing cases for my Spring Copyright class, but also just posted a new forthcoming copyright draft on SSRN. The paper is short and, I hope, readable. Comments welcome.
Fair Use v. Fair Access
In this paper, I make four points.
1. The copyright act defines use rights, not access rights. That overstates slightly—especially with the Digital Millennium Copyright Act in the statute—but the core of copyright law addresses how works can be used assuming that legal access has been obtained. Other law addresses the circumstances under which works can be accessed.
2. Nothing in copyright itself suggests that use rights should trump access rights; indeed, our core access principles suggest just the opposite. We frequently speak of a fair use “right.” I am doubtful about that on its own terms but even if we find something there, a fair use right isn’t an access right. Fair use doesn’t equal fair access.
3. The scope of rights given to an initial author will effect the timing and scope of investment she will make in creating a work. For many works, those investments can be made in discrete lumps. As a society, we want investments to be made incrementally rather than as one large lump as doing so allows us to get feedback from the market on the value of a work. We don’t want to throw good money after bad, and if we learn that, say, the English version of a work is a failure, we don’t want to bother translating it into Mandarin. Plus we will delay the time that works reach the market if we create an incentive to do large, lumpy investments rather than a sequence of investments coupled with market feedback. Authors start with one monopoly: their unique access to the work that they have created. If we do not give authors control over these follow-on works, authors will overinvest upfront in the works, since that is the only way that the can gain a return on their initial monopoly over access to the work. In that situation, we are better off to hand the author a statutory monopoly over the follow-on work rather than see the author invest real resources in creating a property right over that work.
4. Fair use is a form of rights bundling. If we decide that, say, format-shifting is fair use or is otherwise a permitted use—you sell me a music CD and I have a use right to make a personal copy on a cassette or my iPod—we are making a decision about the rights that we are bundling together. The nature of bundles is that everyone gets stuck buying the same set of rights. These bundles can be inefficiently large. Consumers would often be better off if instead we allowed rights to be unbundled, so that consumers could buy just those rights that they wanted rather than being forced to take unwanted rights. Doing that requires a narrow conception of fair use.