1. Is There a Right to Access?: Of Authors, Publishers & Users Intellectual Property Scholars Roundtable 2010 Drake Law School Alina Ng March 27, 2010

2. Idea that private property rights restrict access to promote progress as a basic human right knowledge should be free Does society have a right to access creative works?

3. 2 polar opposites 1.Copyright as an incentive to create & disseminate 2.Copyright as a necessary evil society bears

4. Exclusive rights 1.Encourage creativity 2.Misused to protect markets

6. Right to Access in Property Law (1)Servitudes - non possessory interest (2)Necessity – defense to trespass

7. Right to Access in Copyright Fair Use

8. “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell v.Acuff-Rose Music, 510 U.S. 569 (1994)

10. There doesn’t seem to be a general right to access in copyright…fair use is not a right in itself

11. what society has is a privilege to use

12. what publishers have is a privilege to exercise the rights under §106

13. What about authors? Do they have a right to access? 1.Servitudes 2.Necessity 3.Fair use

14. Analysis A right of access exists, if at all, only for authors: a)to create new works: as in the law on servitudes, access may be necessary to make a property right complete; and, b)To promote progress: as in the law on fair use & necessity, access may be necessary to comment, criticize, and teach

15. Other than that a general claim to a right to access literary and artistic works will only result in confusion between rights and privileges… …in law, there doesn’t seem to be such a right

16. So… …why is there such a claim in the literature?

17. Two bodies of scholarship 1.Law & Economics 2.Critical Legal Studies

18. Conclusion: There isn’t a general right of society to access literary and artistic works… …but the idea persists in the literature because of more contemporary thinking about rights and obligations

19. Thank You