THE
NEW ACCESS RIGHT AND ITS IMPACT ON LIBRARIES
AND LIBRARY
USERS
Lolly
Gasaway
©2002
I. INTRODUCTION
The
1998 Digital Millennium Copyright Act
added to the exclusive rights of copyright owners a right of access.There
continues to be some debate about whether the DMCA actually created a right
of access but it appears to me that it has, whether directly or indirectly.The
reality for libraries and library users is that copyright owners can apply
technological protection measures to their works, and through the anti-circumvention
provision of the DMCA, have the means to control access.The
DMCA ensured that the legal system would support this right by making it
illegal to circumvent a protection measure.Whether
this is truly a new right or whether it is inherent in the migration from
analog to digital works, the impact on libraries and the user of these
works is the same:digital works
will not be freely available in libraries, and by controlling access, copyright
holders may also control use of the work.
In
the past, the users of copyrighted works had a variety of means to obtain
access to these works and the information contained therein.A
reader could purchase a copy of the work, borrow it from someone who owned
a copy, go to a library and either use a copy of the work in the library
or even check it out from the library’s collection and take the work home
to use in private.As more and more
works are available in digital format, copyright owners are either licensing
access to the material or are using technological protection measures to
control access to their works.“
…[A]s the laws change to secure content for publishers there is a negative
impact on those in educational and research communities where the creation,
dissemination, and use of intellectual property is expected and, in fact,
forms the very core of learning and research.”Licensing
also raises serious issues for libraries especially licenses that offer
only “take it or leave it terms” and permit little or no negotiation.Licensing
generally is outside the scope of this article, however.
An
access right is defined as “permission for a subject to access a particular
object for a specific type of operation.An
example of an access right is the permission for a process to read a file
but not write to it.”It
is also “ … the right to control the manner in which members of the public
apprehend the work.”Access
controls could include control of the price the user pays to acquire access.Additionally,
access price could include the number of persons who may hear or view the
work, the number of computers on which the work may be used, how long access
to the work may be available, and similar restrictions.
The
right of access on behalf of copyright proprietors raises significant concerns
for libraries and their patrons in their efforts to access and use copyrighted
works.Libraries acquire copyrighted
books and materials and traditionally made them available to library users.The
first sale doctrine
permits libraries to lend their copies of copyrighted works to users without
seeking permission or paying fees to the copyright holder.Access
controls have the potential to disrupt traditional library service by converting
access to materials to a pay-for-use system regardless of the purpose of
the user who is accessing the work.Although
libraries could fund access for all of its patrons, the reality of library
budgets make this highly unlikely.Thus,
individual library users are likely to have to pay for their access or
for various levels of access which will create a world of information haves
and “have nots.”Additionally, access
controls could eliminate the first sale doctrine, although it is arguable
that the first sale doctrine may be meaningless in a pay-for-use world,
in any event.
In
the past I have written about the values conflict between content providers
and librarians and pointed out the difference in the use of certain terminology
by these groups to describe both copyright and basic library operations.When
I began this article, I knew that content producers and libraries had different
values regarding access to information, but I had no idea that once again
I would encounter a difference in basic terminology.For
years librarians have championed the public’s right of access to government
information, not only in this country but around the world.For
this reason, the term “right of access” is problematic to me as a librarian.Others
also find it problematic for a variety of reasons.For
this article, the term “right of access” or “access right” will refer to
the right of the copyright holder to control access and use of a work that
is provided in § 1201 of the DMCA.
This
article first addresses the purpose of copyright law and its impact on
libraries.This is followed by an
analysis of whether there is a right of access in European law.The
third section examines the development of § 1201 in the United States
followed by an analysis of § 1201 of the DMCA and its exemptions.
Finally, the article addresses the impact of anti-circumvention on libraries
and library users and concludes with a couple of views of the future for
libraries, library users.
In
order to understand the import of § 1201, it is important to consider
the right of access more broadly and look at the European antecedents of
the right.
II. DEVELOPMENT OF THE RIGHT
OF ACCESS
A.General
Background
The
U.S. Constitution states that:
“The
Congress shall have the Power … To promote the Progress of Science and
useful arts, by securing for limited times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.”
In
their work
The Nature of Copyright,
Ray Patterson and Stanley Lindberg identify the policies embodied in this
Constitutional Clause:
the promotion
of learning, preservation of the public domain and protection of the author.
Additionally,
they believe there is also an inherent fourth policy, an implied right
of access, meaning that in exchange for the exclusive rights that copyright
provides, the author agrees to make the work available to the public.
Promotion
of learning is dependent on the right of access principle identified by
Patterson and Lundberg.
In the past,
the various U.S. copyright acts furthered this principle by conditioning
the availability of copyright protection on publication.
“Copyright
entails the right of public access as a quid pro quo for the benefits received
by the copyright owner in the statutory grant of monopoly rights.”
Thus,
a decade ago the “right of access” referred to the public availability
of the work protected by copyright, not the right to control, restrict
or prohibit access to a lawfully acquired copy.
Public
access to published works is a traditional goal of copyright law.
In
the past, printed publication provided sufficient copies of a work through
libraries or individually purchased copies to ensure this access.
Further,
everyone seemed to understand that the social and cultural record contained
in these works would continue to be preserved, most often by libraries.
This
shared norm concerning the availability of published works is now being
challenged as more publishers and producers are reluctant to permit public
access to their works since their economic interests could be harmed.
Libraries
recognize the potential for economic harm to publishers but firmly believe
that works should continue to be available to researchers when their purposes
are study and research, purposes that clearly are in the public
interest.
The
potential for a pay-for-use system to control the availability of works
is gaining ground, however, and information may be made available only
to persons who can pay for it, but, which, because of technological protections,
is not easily shared.
Some
writers dispute whether
either “right
of access” or “access right” is even a useful term.
Traditionally,
access means the way into a place, a limited and closed space which has
a way in.
So,
access must be used in this context as a metaphor.
Given
the freedom of information context in which the right of access is normally
used, it seems to be a somewhat misleading term since here it means the
right to restrict public access.
In
this context, right of access clearly means the copyright holder’s right
to control access to a work.
“As
the ability to order, limit, instruct, or rule something or someone’s actions
or behavior is inherent to the definition of control, what is at issue
with the access right is not only the ability to grant or authorize initial
access, not only for a general purpose but also for specific ones.”
Therefore,
the right of access likely includes the right to control use also.
Thus,
it is not the user’s right to obtain access to the material but the copyright
owner’s right to control access.
Whether it is called an “access right” as opposed to the “right of access”
does not seem to solve the terminology problem either.
There
simply is some confusion over the meaning of the term, and it likely will
continue for some time.
Digital
Rights Management (DRM) is a form of access controls.
DRM
systems may be defined as
systems
that use software to provide licensing more or less “on the fly” or “…
databases that streamline the complex relationships and transactions among
rights, works, and parties.”
More
fundamentally, for the users of copyrighted works DRM provides a convenient
way to obtain permissions and for rightsholders, it provides a way to control
how a work may be used and to be paid for the use.
Some
DRM systems do even more and incorporate specifications for use of a digital
work into the work itself using technologies such as encryption.
On
the other hand, DRM may be just
another
way to protect copyright.
Users
of copyrighted works interact with DRM systems when requesting copies of
works.
Software may control access
to the work, the royalty to be charged, billing the user, the user’s account
information and actually sending the copy to the user.
The
development of digital rights management systems illustrates the power
of technology and its ability to control behavior.
Technological
controls also demonstrate how private individuals can override statutory
protections afforded the users of copyrighted works, such as fair use.
Digital
rights management systems are one such technology which can control behavior.
The
right of access has it antecedents in the right of first publication which
ensures that no one can publish an unpublished work without permission
of the author.
It is the author who
should determine whether the work is to be published at all and if so,
to benefit from any income that the work may earn.
The
right of first publication is a type of access control, since the copyright
holder may decide to prohibit access to the work by not publishing it and
making it publicly available.
But
the right of first publication is really only the right of first access.
The
seeds of an access right might also be found even before the development
of the Internet with RAM copying and the fact that a copy in RAM constitutes
making a copy.
Proof
that an access right now exists in the United States may be found in that
at
least one court has held that it does provide an access right.
In
Los
Angeles Times v. Free Republic,
a case that dealt with the reproduction and posting of the full-text of
newspaper articles on a website for comment by Internet users, the court
stated that copyright holders have the "right to control" access to their
copyrighted works.
The
court did not cite § 1201 or any other section of the Act to support
this statement, however.
B.Development
of the Right of Access in Europe
Many
people assume that the reason the United States has implemented a right
of access is because it either exists in the law of various European countries
or due to treaty obligations.
Just at the U.S. statute does not specifically mention a right of access,
neither do various copyright treaties.
Neither
the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT)
nor the Berne Convention
announces a right of access.
Both
the WCT and the WIPO Performances and Phonograms Treaty,
however, do provide for the protection of technological measures as long
as those measures themselves do not interfere with provisions in the national
copyright law that provide exemptions for users.
The
WCT also articulates the right of communication to the public “ … authors
of literary and artistic works shall enjoy the exclusive right of authorizing
any communication to the public of their works, by wire or wireless means,
including the making available to the public of their works in such a way
that members of the public may access these works from a place and at a
time individually chosen by them.”
This
language appears to put the access choice in the hands of the public.
It
is likely, however, that the copyright owner has the right to control how
that access to the public occurs.
The
European Parliament passed several directives that attempt to balance the
rights of producers of copyrightable materials and the users of such materials
in the European Union (EU).The new
technology has also created new and easily copyable formats that drive
the desire on the part of copyright holders to enact a right of access.The
four directives that currently relate to a right of access include the
Computer Program Directive, Database Directive, Conditional Access Directive
and Copyright Directive.None of
these directives contain a specifically identified right of access, but
each contributes to the overall scheme of access regulations in the EU.
The
European Parliament and Council enacted the Computer Program Directive
(CPD) on May 14, 1991, to be implemented by all Member States by January
1, 1993.
CPD
requires Member States to provide copyright protection for computer programs.
It
grants
the common exclusive rights of reproduction, adaptation and distribution
to the creator(s).
The
directive reserves several rights or exceptions for users of the computer
programs, including: error correction, the making of a single back-up copy,
examination of the program to determine the operating principles and idea
of the program
and decompilation of the program in order to achieve interoperability with
another program.
The
right of decompilation is sometimes referred to as an access right in Europe,
but it is a right on behalf of the public not the copyright holder.
Thus,
the right does not have the same meaning in which the term is used in this
article.
Similarly,
Article 4(c) provides for the application of the first sale doctrine to
computer programs.
The
Database Directive (DD) was passed on March 11, 1996,
to be implemented by all Member States by January 1, 1998.The
DD attempts to harmonize database protection legislation, for electronic
and non-electronic databases,
throughout the Member States.This
directive aims to provide an incentive to database creators by protecting
their financial and professional investments in “slavish copying of their
databases.It
accomplishes this goal by specifically providing databases with copyright
protection,
with the corresponding rights of reproduction, distribution, adaptation
and communication to the public,as
well as providing for a sui generis right.Specifically
exempted from database protection are CD compilations
and computer programs used to build databases.Normal
copyright laws, not the DD, cover the underlying works that compose the
content of the database.The
DD applies only to Member States Residents and Residents of countries with
reciprocal agreements to recognize EU database protection in a substantially
similar manner.
The
European Parliament and Council passed the Conditional Access Directive
(CAD) on November 20, 1998.Implementation
of CAD by all Member States occurred no later than May 28, 2000.
It harmonizes anti-circumvention law for protected service providers whose
service is limited by conditional access.The
services protected include television broadcasting, radio broadcasting
and “information society services.”
The
“manufacture, import, distribution, sale, rental … possession … installation,
maintenance … replacement of… [or] use of commercial communications to
promote”“illicit
devices” that bypass technological security measures protecting service
providers are prohibited for commercial gain,
where “illicit device” means “any equipment or software designed or adapted
to give access to a protected service in an intelligible form without the
authorization of the service provider.”CAD
requires the element of knowledge or should have known.CAD
does not protect against circumvention for noncommercial purposes, however.Moreover,
copyrightability is not a factor.
Partially
conflicting with the prior restrictions on illicit devices, Article 3(2),
which restricts Member States from interfering with the “provision of protected
services, or associated services, which originate in another Member State”
and “the movement of conditional access devices.”With
today’s cross-border services, it may be difficult to determine where a
service originates.Also, conditional
access devices
may be hard to differentiate from illicit devices.For
example, much software includes an update feature so that authorized users
may update their software for a limited time.Also
available online, however, are small software programs, often referred
to as “cracks,” which may integrate into the original software program
to trick the authentication process into allowing illicit access to protected
services and materials.While the
two programs are easily identifiable individually, in the integrated version,
the integrated version may cause identification problems.
On
May 21, 2001, the Copyright Directive (ECD) was passed.This
directive is designed to harmonize the member states’ copyright and related
rights laws, as well as bring the European Union in line with the World
Intellectual Property Organization Copyright Treaties.The
ECD is divided into two main parts: Copyright and Anti-circumvention Measures.The
ECD requires member states to grant the traditional exclusive rights of
reproduction and distribution to the creator.Related
to these traditional rights, the right of communication/making available
to the public of works and other subject matter via digital means is also
granted exclusively to creators.Exceptions
to these rights are arranged by the specific right(s) and some relate specifically
to libraries.
The
reproduction right has one mandatory exception and five optional exceptions.All
Member States must allow for “temporary acts of reproduction … which are
transient or incidental [and] an integral and essential part of a technological
process.”In
other words, temporary copies created in order for a computer program to
operate properly, such as copies produced in computer RAM, must be provided
with an exception.The
optional exceptions on the reproduction right include paper or similar
medium reproductions, excluding sheet music, so long as fair compensation
is provided to rights holders; reproduction on man-made mediums for noncommercial,
private use, with fair compensation to rights holders; noncommercial reproductions
by public libraries, educational institutions, museums, or archives; official
archives of individual bro