Copyright--

The felt need to accommodate copyright to new communications technology caused Congress in the 1976 Copyright Act to eliminate publication as the quid pro quo for copyright. The new statute thereby created problems of access not present with the paradigm of statutory copyright-printed material that is published.' A part of the pattern that emerged in the 1976 Act was a codified fair use doctrine, which presumably had become necessary for the partial fulfillment of the constitutional purpose of copyright--the promotion of learning--because of the elimination of publication, the traditional means of ensuring access (a sine qua non of learning), as a condition of copyright. If indeed the codified fair use doctrine was intended to promote access, however, it has fallen far short of its mark. For fair use as codified has served to enlarge the copyright monopoly by giving copyright owners a basis for increasing their control of access to copyrighted works. And if,as modern doctrine tells us, the right of free speech encompasses the right to hear as well as to speak, to read as well as to publish, it is obvious that Congress made these fundamental changes in copy-right law with little regard for their effect on free speech rights.The wisdom of the Constitution's framers in making the copyright clause a limitation on, as well as a grant of, congressional power was ignored, and the long latent conflict between copyright and free speech rights has emerged to become a reality.

Copyright--

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