Taking Access Seriously

Abstract

Copyright is conventionally understood as serving the dual purposes of providing incentives for the creation of new works and access to the resulting works. In most analysis of copyright, however, creation takes priority. When access is considered, it is often in the context of how access relates back to the creation of new works. Largely missing is an account of the value of access on its own terms. So what is the place of access in copyright law and policy? A set of cases dealing with copyright owners’ attempts to enjoin the markets created by new playback and distribution technologies is instructive. These decisions—where the courts refused to enforce copyright where the owners attempted to shut down a market rather than participate in it—have been criticized for their un- clear policy guidance and lack of doctrinal grounding. We can reconcile these cases with copyright policy by focusing on access. These cases provide rich examples showing how expanded access advances copyright’s higher-order goals of promoting a more democratic and participatory culture. Focusing on access also provides a means for bringing doctrinal coherence to these cases through the fair-use defense. The courts permitted the use of copyrighted works in new markets despite the copyright owners’ objections because these markets could expand public access without diminishing the copyright industries’ creative incentives. Indeed, copyright owners often found the markets profitable after being forced to enter them. Copyright owners’ market refusal in these scenarios is a distinct type of market failure, and fair-use doctrine allows courts to correct it.