Reconstructing the Contours of the Copyright Originality and Idea-Expression Doctrines Regarding the Right to Deny Access to Works

Access to innovative scientific, literary, and artistic content has never been more important to the public than now, in the digital age. Thanks to the digital revolution carried out through such means as super-computational power at super-affordable prices, the Internet, broadband penetration, and contemporary computer science and technology, the global, national, and local public finds itself at the convergence of unprecedented scientific and cultural knowledge and content development, along with unprecedented means to distribute, communicate, and access that knowledge. This Article joins the conversation on the Access-to-Knowledge, Access-toMedicine, and Access-to-Art movements by asserting that the copyright restrictions affecting knowledge, innovation, and original thought implicate copyright’s originality and idea-expression doctrines first and fair use doctrine second. The parallel conversation in copyright law that focuses on the proper definition of the contours of copyright as described in the U.S. Supreme Court’s most recent constitutional law cases on copyright—Feist, Eldred, Golan, and Kirtsaeng—interprets the originality and idea-expression doctrines as being necessary for the proper balance between copyright protection and First Amendment freedom of expression. This Article seeks to join together the two conversations by focusing attention on the right to access published works under both copyright and First Amendment law. Access to works is part and parcel of the copyright contours debate. It is a “first principles” question to be answered before the question of manipulation, appropriation, or fair use is contemplated. The original intent of the Copyright Clause and its need to accommodate the First Amendment freedom of expression support the construction of the contours of copyright to include a right to access knowledge and information. Therefore, the originality and idea-expression doctrines should be reconstructed to recognize that the right to deny access to published works is extremely limited if not non-existent within the properly constructed contours of copyright. * Associate Professor of Law, Valparaiso University School of Law. The Author gives special thanks to the law review editors of the Texas A&M Law Review for their invitation and support in the 2013–14 Intellectual Property Symposium at Texas A&M University School Law School on Oct. 25, 2013, and in particular, to symposium editor Matthew Fronda for his leadership and Deborah Barnett for her facilitation skills. Thanks, too, to my colleagues at this symposium, Sydney Beckman, Megan Carpenter, Jon Garon, Steven Jamar, Lucas Osborn, Susan Richey, Sergio Sarmiento, and Peter Yu for their comments and input into the Article. Additional thanks to my colleagues at the Michigan State University College of Law’s Conference on Innovation and Communications Law at Glen Arbor, Michigan, on May 15, 2013, with particular thanks to conference participants Josh Blackman, Christopher Buccafusco, Andrew Candeub, David Fagundes, Katja Lindroos, Michael Landau, Jacqueline Lipton, Ryan Gabriel Vacca, and Juha Vesala who gave specific comments on this Article. Special thanks, too, to Megan Carpenter and Brian Glassman who motivated me to think through and start writing about this topic.