Access-Right: An Inquiry Into the Problem of Digital Copyright Law

I have just completed the draft of my extended study on copyright law, where I examine issues of access, access to information and digital copyright law. At bottom, I do not propose to abolish copyright law, nor do I think that adjusting the current system could successfully survive the transition to digital markets and digital cultures. Four years of research have led me to the conclusion that the present structure of entitlements is inherently inadequate for regulating an environment, in which the smallest tradable unit of transaction (and/or the smallest object of exchange in nonmarket constellations, if you will) is access to "expressions" - or, as I call them, “medial messages.”

Fixing the existing system cannot remove the structural discrepancies between the exclusive rights and the reality they apply to. What I do suggest is to consider a more painful surgery. A digital society that strongly relies on network communication needs a new legal apparatus of exclusive rights and limitations to those rights. That system should be based on a new set of assumptions, concepts and positive regulation. Most importantly, it would be crucial to abandon formulations that focus on notions of reproduction, distribution of copies, public performance etc. One ramification of my proposal would be the elimination of the distinction between copy-related and noncopy-related rights. I posit that the exclusive rights must be rewritten, and since some of the key concepts and vocabulary do not yet exist under the present law - they should be "invented."

In replacing the traditional framework, the project of redesigning copyright law for the digital setting should focus on access to information and tailor the legal entitlements it devises around the concept of access. In the last chapter of my study I outline a skeletal blueprint of an alternative legal framework that follows these principles. I would be happy to discuss the topic with those of you attending the IPSC at Stanford Law School in early August.