Copyright in the EU and U.S.: What 'Access-Right'?

Abstract

Whether copyright contains an "access-right" is fast becoming a ripe issue. One U.S. court has indicated that copyright law grants copyright owners the "'right to control' access" to copyrighted materials. A noted copyright scholar has recently made the claim that whilst the "access-right" has only recently become an integral part of copyright, this "right" was nevertheless implicit in certain rights found under copyright law even before mass copying devices became available. The "New or Evolving 'Access Right'" is also one of the main topics of the ALAI 2001 Congress entitled "Adjuncts and Alternatives to Copyright" to be held in New York City this summer. But even outside of copyright, other "access-rights" are emerging. Austria, for instance, has included a "right of access control" in its transposition of the EU Conditional Access Directive. This article seeks to show that the traditional rights under copyright have not contained, and still do not contain, an "access-right" and that the issue of the "access-right" is instead one of characterisation. Once properly characterised, it becomes evident that the ability to control access can arise from multiple rights in addition to copyright law. Moreover, the recent inclusion of the "access-right" within copyright does not represent an evolution of copyright to extend to new forms of exploitation but rather the incorporation of a completely new rights structure into copyright law - one closely akin to that underlying cinemas and theatres. This recent development raises the key issue central to the debate over the "access-right": which rights structure will come to regulate the use of creative materials and information products in the digital environment - copyright, a (contorted) copyright system based on the cinema/theatre model, or something else altogether?

Keywords: Copyright, WIPO copyright treaty, legal protection for technological measures

JEL Classification: K11, K33