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Dinwoodie, Graeme B. --- "From Having Copies to Experiencing Works: The Development of an Access Rights in U.S. Copyright Law" [2006] ELECD 258; in Hansen, Hugh (ed), "US Intellectual Property Law and Policy" (Edward Elgar Publishing, 2006)

Book Title: US Intellectual Property Law and Policy

Editor(s): Hansen, Hugh

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845428662

Section: Chapter 2

Section Title: From Having Copies to Experiencing Works: The Development of an Access Rights in U.S. Copyright Law

Author(s): Dinwoodie, Graeme B.

Number of pages: 20

Extract:

Chapter 2

From Having Copies to Experiencing
Works: The Development of an Access
Right in U.S. Copyright Law
Jane C. Ginsburg*


A B S T R AC T

This essay addresses the copyright law's response to new forms of distri-
bution of copyrighted works through the establishment of a right to
control digital access to copyrighted works. This right is set out in ยง 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 U.S.
Constitution authorizes Congress to `secure'. Even if Congress may qual-
ify 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 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

* Morton L. Janklow Professor of Literary and Artistic Property Law, ...


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