COPYRIGHT CORNER
IS THERE A NEW RIGHT OF ACCESS?
October, 2003
The Digital Millennium Copyright Act gave copyright holders an important new weapon to control access to their works. Referred to as the anti-circumvention provision,[1] the right to control access is couched in terms of creating liability for creating and using devices that disable a technological device that the copyright owner has used to prevent access to a work. To date, these devices have been of three types primarily: (1) time expiring content, (2) password protected works and (3) encrypted materials, such as DVDs. The anti-circumvention provision has both civil and criminal penalties for manufacturing devices, including software, that can be used to circumvent technological access controls, for trafficking in such items and for using such devices.[2]
There is a small exception to this statute provided for libraries. If a library gains access to a work and disables access controls for the sole purposed of making a determination of whether to acquire access a work, there is no problem. However, the work may not be used for any other purpose and the work may not be retained for longer than is necessary to make a good faith determination about whether to purchase the work or acquire legitimate access to it.
To a librarian, the term “right of access” more likely denotes the right of a citizen to access government information and other public domain materials. In the context of the digital environment, however, the term is used to describe the right of a copyright holder, to control who may use a work, an almost opposite meaning.
In providing copyright owners with the legal tools to attack anyone who circumvents a technological protection that controls access to a work, has Congress added a right of access to the list of the six exclusive rights of the copyright holder? Many scholars believe that it has even though it is not enumerated in the section 106 list of exclusive rights. If the right of access is a new exclusive right, does fair use apply to this right as it does to the others?
The statute indicates that fair use and other rights, remedies and defenses provided in the Copyright Act are not affected. Thus, by the words of the statute, fair use continues to exist. But how can a user make a fair use of a work to which technological controls have been applied if she cannot first get access? To date, there have been few cases that consider circumvention. One court that has done so stated that there is no fair use unless the access to the work is an authorized access.[3] Thus, there exists no right of fair access even though there is fair use. This makes fair use a nullity. The impact of this is extraordinary as fair use is a bedrock principle of American copyright law. Moreover, if a copyright holder applies a technological access control to the work, he is also controlling the use of the work which might actually be a fair use except that the user cannot obtain access.
So what do libraries want? The primary mission of libraries is to serve the needs of their users. They want to ensure that users have the same rights to use digital documents as they currently have to use analog works. Patrons should have the right to read anonymously, to browse electronic documents and to place a hold on desired publications in use by someone else, and to check out (use) materials for a reasonable period of time. Additionally, they should have the right to make fair use copies of excerpts or entire work. The culture of sharing copyrighted works both through libraries and users in their homes is embedded in the national culture. Library users expect to be able to share copyrighted works both in the library and in their offices and homes. All of this is true whether the materials are analog or digital.
The best statement of this is found in the Association of Research Libraries document, Fair Use in the Electronic Age: Serving the Public Interest, which was adopted in the mid-1990s.[4] It specifies what members of the public have a right to do without infringing copyright:
(a) "To read, listen to or view publicly marketed copyright material privately, on site or remotely; (b) To browse through publicly marketed copyrighted material; (c) To experiment with variation of copyrighted materials for fair use purposes, while preserving the integrity of the original; (d) To make or have made for them a first generation copy for personal use of an article or other small part of a publicly marketed copyrighted work or a work in a library's collection for such purpose as study scholarship or research; and (e) To make transitory copies if ephemeral or incidental to a lawful use and if retained only temporarily.
The anti-circumvention provision of the Copyright Act is clearly contrary to these principles. If other courts ultimately recognize a right of access on the part of copyright holders, libraries will have serious concerns. Assume, a library user obtains access to a work through a library which has paid for the right to access the work. Then the patron disables or interferes with the technological controls that a publisher or other copyright owner used. Is the library liable? In other parts of the copyright law, the library is not charged with the infringing conduct of users if it follows the law, posts the required warnings and notices, etc. It appears, however, that the anti-circumvention provision could be used to create a strict liability standard for libraries. Even the new TEACH Act contains a provision that says educational institutions that use a work for digital distance education may not disable the technological protections that prevent its use for distance education even if the school has paid for access and acquired the work solely for the purpose of using it in an online course.
There are several other concerns such as preservation. How can a library or other entity preserve a digital work which has technological protections if it cannot acquire access? And what about public domain materials? Should publishers be able to lock up public domain works? If they do so, why should it be infringement to acquire access such works? Is there any way someone can browse a digital document protected by access controls to determine whether to acquire access? Will those who can afford to pay for access or who have library privileges simply widen the digital divide?
Access controls may ultimately prove to be unacceptable to the public. There is some indication that encryption of motion pictures onto DVDs is unacceptable to a portion of the public who disable the controls and copy the movies. The United States tried to prohibit certain previously legal acts with the 18th Amendment to the U.S. Constitution which made the manufacture, transportation and sale of alcoholic beverages illegal. The consumption of alcohol was not illegal, however. Prohibition proved totally unacceptable to the public, and the result was the development of speakeasies, the rise of organized crime and, at least according to many accounts, more widely available alcoholic beverages and increased consumption than ever before. The answer was not more prohibition, and the detested provision was repealed by the 21st Amendment.
Proponents of anti-circumvention would do well to consider the lesson of prohibition. And the 18th Amendment was not as sweeping as section 102 because it did not prohibit the use or consumption of alcohol unlike the anti-circumvention provision which provides both civil and criminal penalties for an individual who uses a circumvention device to acquire access to a work.
[1] 17 U.S.C. § 1201 (2000).
[2] Various aspects of anti-circumvention were discussed in “Copyright Corner” in Information Outlook for June 1999, January 2001 and May 2003.
[3] Universal Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 323 (S.D.N.Y. 2000).
[4] Association of Research Libraries, http://arl.cni.org/info/frn/copy/fairuse.html. The following library associations also adopted this statement: the American Association of Law Libraries, American Library Association, Medical Library Association and Special Libraries Association.