This Article argues that copyright jurisprudence has lost sight of the knowledge principle at the heart of the Constitutional justification for copyright. The Framers envisioned the objective of copyright as promoting the advancement of knowledge for a democratic society by increasing access to published works.
Under what is best termed the “knowledge principle,” access to existing knowledge is a necessary condition for the creation of new knowledge. Copyright jurisprudence has largely protected the interests of producers – from early booksellers to modern Hollywood film companies – failing to notice the central role of access to works as a necessary pre-condition to the creation of new works.
The realities of the digital era further hinder the functioning of this mechanism. Ownership of copies of texts has morphed into a limited right of possession of digital files. Public libraries can no longer fulfill their mission of maximizing the circulation of materials in order to spread available knowledge among citizens.
This Article proposes an alternative model to the conventional copyright theories, focusing on the critical role that access to knowledge resources plays in the dynamic processes at work in the production of knowledge and the creation of new works.
This Article proposes a non-waivable “fair access” right exercisable by public libraries in order to realign copyright with its Constitutional justification, and more importantly to support the knowledge creation process for the future of our democratic society.