Section 106 is the exclusive source of economic rights (Section 106A being the source for visual artists' rights). If the right isn't there, it doesn't exist. (Just like if an exemption isn't found in Sections 107-122, it doesn't exist). The question of a "making available" right has been played out mostly as an asepct of the distribution right. A recent opinion in the Eastern District of California, Therapeutic Research Faculty v. NBTY, 81 USPQ2d `723 (E.D. Cal. Jan. 25, 2007), raises the question of a "right of access" that is no where to be found in the statute.
The dispute in the case is not particularly complicated: it turned on whether a pass-code protected license to access a database had been materially breached (leading to infringement). Defendants bought a restricted (and therefore cheaper) license; plaintiff alleged defendants gave out the pass-code to a number of individuals well beyond that authorized by the license terms. Plaintiff's complaint alleges that defendants "willfully and without permission infringed copyrights by engaging in the systematic, regular, and repeated authorized access to" its work.
Defendant brought an FRCP 12(b)(6) motion, arguing that infringement via unauthorized access "is not the type of conduct subject to protection by the copyright laws - the allegation simply has nothing to do with Defendants copying Plaintiff's work." I agree. The court though, noted that plaintiff also alleged, factually, that one of Defendants' employees "pasted the text from the [Plaintiff's Work] into an email and forwarded it to three employees... ." The court concluded:
"Plaintiff's claim of 'unauthorized access,' including allegations regarding pasting text from the copyrighted work into an email, sending of emails to unauthorized users and improperly accessing the [work] for purposes of of preparing FDA notifications, sufficiently alleges a violation of Plaintiff's exclusive rights to display, reproduce and distribute.... "