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
Abstract
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.
Comments