Access to copyrighted work: right or privelege?

This paper addresses the question of whether access to work protected by copyright in the digital environment is a right or a privilege. In the analogue world works protected by copyright were typically embodied in physical objects, such as books. The user gained access to the underlying work (the literary work, in my example) by being in possession of the physical object. Embodiment of a work in such a format that possession of the physical object did not provide access to the work was unknown, and so copyright law made no provision for an exclusive right to control access to a work. The digital era introduced media that made it possible to possess the physical object embodying a work without necessarily being able simultaneously to access such work. This is done by means of access controls such as encryption. A user who wants access to an encrypted work will need something more than mere possession in order to gain access. Since users do not always have the keys to unlock these access controls, they circumvent these controls. Article 11 of the WIPO Copyright Treaty of 1996 (the WCT) addresses the circumvention of technological protection measures (access control is a type of technological protection). Article 11 of the WCT has been implemented in the United States, the European Union as well as Australia. Although South Africa signed the WCT, it has not yet implemented its provisions in national legislation. While gaining access to a work protected by copyright in the analogue world was not an infringement of copyright, the legislative protection of access controls in the digital world made it an infringement. Access is a necessary prerequisite to use in the digital world, and users who do not have access keys will not only be prevented from accessing the work but also from using the work.