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More than any other development associated with digital copyright lawmaking, the advent of anticircumvention laws has most significantly directed attention to the emerging convergence between access control and copyright exclusivity. More recent anticircumvention regulations under copyright have unapologetically introduced the term access to the language of copyright statutes. Among the most fiercely contested legislative responses to digital infringement threats, this novelty has been spawning deliberations on the transforming nature and scope of copyright protection as applied to TPM-protected works. This chapter explains the connection between this controversial annex to copyright law and the first access-right prong, as well as its central contribution to the transformation process copyright law has been undergoing. It argues that too rigorous anticircumvention prohibitions might conflict with both the letter and spirit of the Berne Convention, which connects to more fundamental questions concerning the interface between anticircumvention regulation and traditional copyrights in general. The chapter shows why both types of regulation cannot be reconciled to build a coherent and harmonious body of law.

This chapter on copyright laws in the 19th century covers legal sources of copyright, justifications and the evolving law, authorship and entitlement, infringing acts, the overall direction of Victorian copyright law, implementation of the Berlin Act, and Imperial Copyright Act.

This chapter evaluates the main arguments for and against the access-right regime, then turns to review contemporary approaches that seek to thwart overprotection hazards that emanate from the current structure of copyright law. The chapter sets the stage for the introduction of a model (Chapter 8) that premises digital copyright on the access-right thesis.

Two principal missions underlay the discussion in this chapter. First, it scrutinizes the notion of “access to information” and translates it into a vocabulary that property law can process and analyze. Second, the analysis explored three main routes as potential legal sources to rights-of-access: copyright law, free speech law, and human rights law. It concludes that positive copyright law itself does not provide a solid and sufficiently explicit basis for such rights. Also the remaining routes have proven to a large extent unable to safeguard rights-of-access, especially when the information at issue is subject to copyright exclusivity.

This chapter explores the notion of information. Topics discussed include theoretical approaches to conceptual analysis of information, information as process, a model that depicts the single sequence of communication and explains its elements, and application of the model to copyright law.

This chapter describes how non-stable digital representations substantially came to qualify as “copies”, rendering the reproduction right omnipresent in digital settings. It further identifies the position and function of the digital reproduction right within the larger transitional process copyright law has been undergoing, and most relevantly, the shift toward an access-right regime.

This chapter examines the relationship between copyright law, the harm caused by others' uses of copyright material, and free expression. The United States has a very strong tradition of First Amendment protection for speech, including speech that is threatening to others, immoral by the standards of many, or socially disruptive in other ways. The one glaring exception is in copyright law, which often permits infringement actions against speech that is both expressive on the part of the speaker and harmless, or virtually so, to the copyright holder or anyone else. A harm requirement is proposed for copyright infringement that protects both creative innovation and free speech.

This chapter examines the role of the individual as transformer of copyrighted works and the relationship of this role to the key goals of the copyright regime in the United States: encouraging creative output and advancing progress in the arts. It explores the history and purpose of copyright law, charting the evolution of its jurisprudence. Casting an eye toward the policy goals of the copyright system, the chapter examines the genesis of authorial protection, beginning with the source of all Anglo–American copyright law (England's Statute of Anne) and going through the early colonial copyright statutes, the Constitution's Copyright Clause, and the federal government's Copyright Act of 1790. It shows that the early debates over copyright law pitted two distinctly different visions of intellectual property rights against one another. On one hand, advocates of a natural-rights vision of copyright believed creators have an inherent property interest in the fruits of their intellectual efforts. By contrast, advocates of a utilitarian view reluctantly accepted the copyright monopoly to the extent it provided individuals with the necessary economic incentives to promote the production and dissemination of creative works. An analysis of the historical record indicates that the United States copyright regime squarely rejected the notion of natural rights and embraced a utilitarian copyright law that balanced the interests of creators and users of works by limiting the property right in both scope and duration and focusing on the system's role in encouraging the dissemination of knowledge.

This chapter focuses on the individual as a pure consumer of copyrighted works. It highlights the critical role that copyrighted works play in personal development by tracing how a person's relationship with intellectual property impacts both on the formation and expression of identities. In the process, the chapter critiques the insufficient weight traditionally given to the personhood interests of copyright consumers, and assesses the growing threat to these interests posed by both technical and legal changes in recent years.

This chapter turns to the issue of copyright reform. Although the matter of recasting a Copyright 2.0 for the digital age is wrought with challenges, if offers suggestions to address some of the concerns regarding artistic progress, expressive rights, information access, and technological development raised in the course of the analysis. The reforms focus on three particular goals: restoring the balance between users of and rights-holders to copyrighted content; tempering the disparity between copyright law's treatment of sophisticated and unsophisticated parties; and recalibrating the relationship between transformative users and original creators of copyrighted content.

The Copyright Act serves a combination of public and private interests. Where possible, conflicts between the two should be resolved in favor of the public interest. This approach would sort out some of the most pressing issues in copyright law today. The most troublesome aspects of copyright expansion over the past few decades include a longer copyright term, broad reproduction and derivative works rights, and digital rights in the Digital Millennium Copyright Act (DMCA) that prevent uses previously thought to be noninfringing. Yet, copyright doctrines such as the idea/expression dichotomy and fair use protect the rights of the public to use portions of copyrighted works. This chapter discusses how courts can use constitutional adjudication and statutory interpretation to define the scope of these provisions and resolve ambiguities among them in order to restore copyright's balance of incentives and access.

This chapter focuses on the individual as creator. In so doing, it finds that, although copyright may go too far in vindicating the rights of some creators, it actually does too little for others. Formalities lie at the heart of this hierarchy of protection, and they provide insight into the particular interests the modern copyright regime serves. This deconstruction of copyright code is both revealing and instructive. Most prominently, it shatters the myth of American copyright militancy by demonstrating how the United States copyright system is far less protective of creator interests than those of other countries. But just as importantly, it suggests it is not necessarily greater or lesser copyright that is needed, but rather a regime that more fully considers the interests of ordinary individuals acting as both users and creators of creative content.

This chapter introduces the problem of special-interest influence and overbreadth in copyright law. Clearly Congress is stuck. Over the past few decades it has tended to listen only to rights holders and not users, and innovation suffers. One important result of legislative capture in copyright is the virtual absence of any serious harm requirement for many instances of copyright infringement, particularly where derivative works and fair use are concerned.

This chapter examines the material and cultural foundations that provided the resources necessary for magazine publishing and the demand necessary to sustain a large number of magazines in locations across America. In particular, it explores a number of fundamental changes in American society that supported the explosive growth and increasing variety of magazines. It first considers basic material supports such as advances in printing and papermaking technologies and the development of the U.S. postal system before discussing the more complex demographic, economic, and cultural supports. These include population growth and urbanization and the rise of various religious, political, and economic communities of readers. In particular, the chapter describes the growth of an increasingly urban, better-educated, more prosperous population, along with the development of copyright law in Britain and America and its impact on cultural conceptions of authorship in both countries.

This chapter begins with an overview of patent and copyright law, offering a synthesis of the elements most important for innovation. It then explores justifications for intellectual property (IP). It asks whether IP is necessary by examining other incentives for innovation. Finally, it traces dangers of IP protection such as monopoly loss, innovation bottlenecks, and harms to disruptive and user innovation.

This chapter discusses Japanese intellectual property law. Topics covered include Japan as an ‘intellectual property-based nation’, patent law, copyright law, trade market protection, trade secrets protection, and other types of intellectual property.

This chapter analyzes the issue of the danger posed by statutory damages. It begins with an overview of the law of statutory damages. It then examines Congress's intent, describing the purposes of assuring adequate compensation and deterring infringement. It discusses two cases that demonstrate the perils posed by bond requirements and the application of statutory damages in the context of indirect infringement. The chapter concludes with a proposal to prohibit the application of statutory damages to secondary infringers. Such a recommendation would increase radical, disruptive innovation.

This chapter looks at the relationship of copyright to freedom of speech, but similar problems arise in other areas of law where property rights are recognised, whether under statute or at common law. Examples are trade marks, as well as publicity rights which have been widely recognised in the United States, if not hitherto in England. Enforcement of these rights may have repercussions for the exercise of freedom of speech; this topic is briefly discussed in this chapter. Some explanations for why copyright law should remain immune from free speech scrutiny are considered; one is that copyright is a property right. The chapter also argues that at least some infringing works are entitled to the coverage of a free speech (or expression) clause, even though in most instances the publication of an infringing work may properly be restrained by the rules of copyright law. Finally, it discusses balancing copyright and free speech rights.