them available to the public for no direct payment by the user.3 Public access and use occur in a variety of ways, including purchase (new or used), borrowing (from libraries or friends), educational exposure, and reading of commentary that quotes a work. To date, this collection of mechanisms has worked well, providing protection and thus incentive to authors and rights holders while also ensuring wide public access to work through a variety of routes.4
Changes brought about by digital intellectual property (IP) and the information infrastructure are challenging the existing set of policies and practices for public access. This chapter focuses on the implications of those changes for public access, including both the optimistic and pessimistic projections of their possible consequences.
U.S. courts and commentators have repeatedly emphasized the fundamentally utilitarian nature of copyright, noting that the Constitution provides for intellectual property protection with the pragmatic goal of promoting the public interest in access to knowledge and innovation. This intent is evident from the Constitution's grant to Congress of 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 United States v. Paramount Pictures, Inc., the Supreme Court's decision considered the purpose of this clause:5
The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U.S. 123, 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors." It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.
Further comment on the constitutional concern with access to infor-
3Of course, costs are involved in operating these institutions, which are funded by government, universities, and other organizations.
4Because the term "public access" has been used historically in a variety of ways, it is useful here to note one way in which the committee is not using the term. It does not include in public access any access to specific copies of a work, especially any unique copies of a work (e.g., the originals of artwork). The public has access to versions of a work that have been published and distributed, placed in publicly accessible collections (e.g., libraries), or otherwise made available through normal channels.
5334 U.S. 131, 158 (1948).