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ARTICLE
COPYRIGHT AND SOCIAL JUSTICE IN THE
DIGITAL INFORMATION SOCIETY:
“THREE STEPS” TOWARD INTELLECTUAL
PROPERTY SOCIAL JUSTICE
Lateef Mtima
ABSTRACT
Copyright law and policy makers around the world have
proven quite adept at identifying, exploiting, and promoting the
social utility benefits made available through advances and
innovations in digital information technology. Courts have played
a critical role in achieving this progress, particularly through the
use of various copyright social balancing mechanisms such as the
fair use doctrine. Courts have thus allowed digital innovations and
applications such as Internet search engines, “snippet-search
indices,” and data-mining information extraction and re-purposing
methodologies to proceed as public uses of copyrighted material,
and concomitantly promote socially balanced perspectives toward
“digital copyright.”
However, while digital information technology has been
generally applied in the service of copyright social utility, the
unprecedented opportunities it presents for the advancement of

Professor of Law, Howard University School of Law; Director, Institute for
Intellectual Property and Social Justice. I would like to thank Craig Joyce, Greg Vetter,
and the 2015 IPIL/Houston Symposium of the Institute for Intellectual Property &
Information Law, University of Houston Law Center for their invaluable support. I would
also like to thank the Symposium participants, Irene Calboli, Meg Boulware, Margaret
Chon, Daniel Gervais, Alessandra Grace, Leah Chan Grinvald, Peter Harter, Patricia Judd,
Irene Kosturakis, Sapna Kumar, Amy Landers, Jacqueline Lipton, Connie Nichols, Michael
Olivas, Eric Priest, and Cathay Smith for their many helpful comments. I would also like
to acknowledge Anaek Johal and Taylor Moore for their excellent research assistance.
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copyright social justice remain largely unexplored. Globally
mobilized, digital information technology can democratize access
to information, knowledge, and learning, and otherwise enhance
the participation of IP-marginalized and underserved groups and
communities throughout the copyright system.
The recent decision by the U.S. Court of Appeals for the
Second Circuit in Authors Guild, Inc. vs. Hathitrust portends how
Fair Use and other copyright social balancing mechanisms can be
used to facilitate digital (and other) use of copyrighted works to
promote social justice. In Hathitrust the court expressly
considered the objectives of the federal Americans with
Disabilities Act in its assessment of the pertinent copyright
interests, and ultimately concluded that unauthorized digitization
of copyrighted works for the purpose of making them accessible to
the blind must be permitted as a Fair Use.
Building upon the decision in Hathitrust, this article offers a
three-step framework for determining when the unauthorized use of
copyrighted (and other intellectual property) works should be
permitted in the interest of social justice. Under the proposed “IP
social justice assessment” framework courts would consider
(i) whether permitting an unauthorized use will further the objectives
of a specific law or governmental policy; (ii) whether there is some
nexus between the social objectives underlying that law or policy and
the social objectives which underlie intellectual property protection;
and (iii) whether permitting the use would undermine intellectual
property social utility as a whole.
As discussed herein, the proposed “IP social justice assessment”
framework is particularly compatible with Fair Use and the other
prevailing copyright social balancing mechanisms, all of which permit
courts to consider the social impacts of unauthorized uses of
copyrighted works. Moreover, the proposed framework is also
consistent with the TRIPS “Three Steps” test, in that the framework
allows for only “special” (i.e., “government-compelled”) uses that do
not unreasonably conflict with the legitimate interests of rights holders
(in that it requires a nexus between IP and non-IP social objectives),
and that do not conflict with the normal commercial exploitation of
such works (in that the unauthorized use must be appropriately
respectful of IP social utility). Accordingly, the framework is
amenable to a variety of national copyright regimes and consistent
with the mandates of international IP comity.
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TABLE OF CONTENTS
I.
INTRODUCTION ..................................................................... 462
II. DIGITAL COPYRIGHT AND THE COPYRIGHT SOCIAL
UTILITY BALANCING MECHANISMS ..................................... 466
A. The Fair Use Doctrine .................................................. 469
B. Fair Use and Digital Copyright ................................... 471
C. Copyright Limitations and Exceptions:
The European Union .................................................... 473
D. EU Copyright Limitations and Exceptions and
Digital Copyright ......................................................... 475
E. Fair Dealing ................................................................. 478
F. Fair Dealing and Digital Copyright ............................ 479
III. INTELLECTUAL PROPERTY SOCIAL JUSTICE IN THE
DIGITAL INFORMATION SOCIETY .......................................... 480
IV. COPYRIGHT SOCIAL UTILITY IN THE COURTS:
PROMOTING SOCIAL INTEROPERABILITY.............................. 487
V. DERIVING JUDICIAL STANDARDS FOR PROMOTING
INTELLECTUAL PROPERTY SOCIAL JUSTICE ........................ 492
A. “Three Step” Framework for
Assessing IP Social Justice .......................................... 496
1. Step One: Alligate IP Social Justice Goals to
Express Law or Governmental Policy ................... 496
2. Step Two: Identify a Nexus Between the
Relevant IP and Non-IP Social Utilities .............. 498
3. Step Three: Determine Whether Allowing the
IP Social Justice Use Would Be Wholly
Antagonistic to IP Social Utility ........................... 498
B. Applying the Social Justice Assessment Framework:
Copyright Social Balancing ......................................... 499
C. IP Social Justice Assessment and TRIPS.................... 501
VI. CONCLUSION ......................................................................... 504
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INTRODUCTION
That digital information technology has immeasurably
enhanced contemporary copyright social utility is a fact that
cannot be gainsaid. From advances in computer software
technology to the proliferation of the Internet, copyright owners
and users alike enjoy expanded frontiers through which to
imagine, explore, and share creative expression. However,
whereas the benefits of digital information technology have
been universally embraced and applied in the cause of copyright
social utility, the unprecedented opportunities such advances
offer to promote copyright (and other intellectual property)
social justice remain largely unexplored. In this regard, the
greatest social boons of the Information Age may yet to be
discovered.1
Intellectual property social justice contemplates the precepts
of socially equitable access, inclusion, and empowerment as both
intrinsic and essential to the fulfillment of the goals of
intellectual property social utility.2 Digital information
technology has the potential to democratize access to
information, knowledge, and learning throughout the world.
Underserved groups and communities in developed nations can
utilize these capabilities to enhance their participation in
intellectual property development and dissemination, while
developing nations can deploy them to gain a genuine stake-hold
in the global intellectual property system. 3 Moreover, the
1. Social Justice, PURE, http://purecities.org/social-justice/ (last visited Nov. 20,
2015).
2. See, e.g., Anupam Chander & Madhavi Sunder, Foreword: Is Nozick Kicking
Rawls’s Ass?, 40 U.C. DAVIS L. REV. 563, 578–79 (2007); Rita Heimes, Trademarks, Identity,
and Justice, 11 J. MARSHALL REV. INTELL. PROP. L. 133, 148–55 (2011); Steven D. Jamar,
Copyright and the Public Interest from the Perspective of Brown v. Board of Education, 48
HOW. L.J. 629, 648–54 (2005); Lateef Mtima, Copyright Social Utility and Social Justice
Interdependence: A Paradigm for Intellectual Property Empowerment and Digital
Entrepreneurship, 112 W. VA. L. REV. 97, 121–22, 135 (2009).
3. See Doris Estelle Long, Deviant Globalization and the Rise of Diverse Interests in
the Multilateral Protection of Intellectual Property, in DIVERSITY IN INTELLECTUAL
PROPERTY: IDENTITIES, INTERESTS, AND INTERSECTIONS 58, 60 (Irene Calboli & Srividhya
Ragavan eds., 2015) (“Digitization has similarly empowered the introduction of new
interests into the multilateral [IP treaty] process. While earlier multilateral processes
largely featured the interests of authors and content providers . . . NGOs now actively
represent the interests of end-users, Internet service providers (ISPs), and other
third-party intermediaries . . . in such proceedings. One clear indication of the power of
such civil societies is the acceptance, and growth in number, of NGOs accredited as
observers at the World Intellectual Property Organization (WIPO) proceedings.”); Lateef
Mtima, Introduction, Symposium on Intellectual Property and Social Justice, 48 HOW. L.J.
571, 572 (2005) (“[T]he digital revolution and similar technological advances present
unheralded opportunities though which to confront [intellectual property social inequity]
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potential benefits of an intellectual property social justice
perspective toward “digital copyright” are far from one-sided: as
fully incentivized participants on the intellectual property
playing field, the “IP marginalized” will both increase their
contributions to the global intellectual property storehouse and
develop concrete reasons to respect the prevailing rules of
intellectual property engagement and exchange.
While courts throughout the leading copyright legal
regimes employ various copyright social balancing
mechanisms (such as fair use) as an important means for
promoting digital copyright social utility, courts generally
have eschewed their application toward issues of copyright
social justice. Perhaps the most significant impediment to
judicial pursuit of digital copyright (and other intellectual
property) social justice may be the lack of discernible, concrete,
and consistent standards for balancing social justice objectives
against intellectual property economic incentives. Rights
holders who appreciate the need for social balance in
intellectual property protection, as well as the courts who must
implement and preserve that balance, require assurance that
the recognition of social justice obligations in the intellectual
property law will not open floodgates that will all but sweep
away the economic rights and incentives that play a role in the
stimulation of intellectual property production.
A recent decision by the U.S. Court of Appeals for the Second
Circuit in Authors Guild, Inc. v. HathiTrust4 may offer an
analytical lodestar toward the development of legal standards for
adjudicating copyright and other intellectual property social
justice claims. In HathiTrust, the court held that unauthorized
digitization of copyrighted works for the purpose of improving
access for people with certified print disabilities must be permitted
as a fair use.5 The court based its decision in part upon the
Americans with Disabilities Act (“ADA”),6 and thereby explicitly
from a socially redeeming vantage point. . . . [T]he new technologies can provide the
apparatus through which to achieve a more equitable distribution of the benefits of creative
endeavor. In order to attain these goals, however, it is necessary to reorient our construction
and application of the intellectual property law toward the aspiration of social justice.”);
Ruth Okediji, Givers, Takers, and Other Kinds of Users: A Fair Use Doctrine for Cyberspace,
53 FLA. L. REV. 107, 108 (2001) (“[I]nformation technology has empowered ordinary users
to become a part of the creative process both by its interactive nature and the very
architecture of the pennon of the information society, the Internet.”).
4. Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 90–91 (2d Cir. 2014).
5. Id. at 101.
6. Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (2012); HathiTrust,
755 F.3d at 102.
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invoked non-copyright law in its assessment and balancing of the
relevant copyright (and other) social utilities. In explicating how
the social objectives promoted by the ADA can be relevant in
elucidating the social mandates of copyright protection, the
HathiTrust decision delineates the functional interdependence
between copyright social utility and copyright social justice: the
pursuit and achievement of certain social justice objectives can be
beneficial, even essential, to the full effectuation of the goals that
underlie intellectual property protection.
The invocation of non-IP law in order to balance competing
intellectual property rights and interests offers a foundation for
constructing standards for evaluating IP social justice claims and
objectives. By anchoring IP social justice-oriented claims to
specific laws and express governmental policies, social justice
advocates ground their arguments in society’s collective and
verifiable social objectives, and not merely the views or agenda of
individual clients or interest groups. Moreover, such invocation of
non-IP law and policy objectives in the interpretation of copyright
and other intellectual property law has not been limited to courts
in the United States. Accordingly, analysis of HathiTrust and
similar decisions can help to identify ecumenical legal standards
for pursuing copyright and other intellectual property social
justice in the digital information age.
This Article will explore how courts can develop standards for
achieving digital copyright and other intellectual property social
justice and will focus on how courts can employ and supplement the
principal copyright social balancing mechanisms of fair use and fair
dealing and copyright limitations toward achieving this goal. Part II
will briefly review the prevailing copyright social balancing
mechanisms and discuss how they are typically used by courts to
promote digital copyright social utility. Part III will summarize the
basic precepts of intellectual property social justice and explore their
importance in the digital information society. Part IV will examine
judicial decisions that assess non-copyright law and policy
objectives, particularly in concert with copyright social balancing
mechanisms, in the adjudication of copyright infringement disputes.
Finally, Part V will offer a proposal for deriving legal
standards for promoting copyright (and other intellectual
property) social justice through the courts. Utilizing common
themes and methodologies from the cases discussed in Parts II and
IV, the proposal will proffer a three-step framework for evaluating
the unauthorized use of intellectual property in the cause of social
justice. The proposed “IP social justice assessment” framework is
comprised of (i) the identification of an express law or
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governmental policy that would be furthered by an unauthorized
use of copyrighted (or other intellectual property) material;
(ii) confirmation of a nexus between the policy objectives that
underlie said law or policy and the policy objectives that underlie
intellectual property protection; and (iii) a judicial finding that the
specific unauthorized use is not antagonistic to intellectual
property social utility as a whole.
As discussed below, the proposed framework is especially
compatible with the leading copyright social balancing mechanisms,
particularly fair use, which invite courts to consider the social impact
of allowing or precluding an unauthorized use of protected works.7
Perhaps most important, however, is that the proposed framework is
also consistent with the Three Steps test set forth in the TRIPS
Agreement,8 in that it arguably allows for only “special” (i.e.,
“government sanctioned”) uses, which do not unreasonably conflict
with legitimate interests of rights holders (in that the framework
requires a nexus between the subject IP and non-IP social utilities)
or with the “normal” commercial exploitation of intellectual property
(in that the use must be adjudged as not antagonistic to intellectual
property social utility). The IP social justice assessment framework
can thus be applied in a variety of intellectual property regimes and
contexts, and can provide a measure of predictability and certainty
to all intellectual property stakeholders, as courts undertake to
balance rights holder interests against other societal needs in the
digital information society.
7. Deepa Varadarajan, Trade Secret Fair Use, 83 FORDHAM L. REV. 1401, 1405
(2014).
8. See Agreement on Trade-Related Aspects of Intellectual Property Rights arts. 19,
21, 24, 26, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade
Organization, Annex 1C, 1869 U.N.T.S. 299 [hereinafter TRIPS]; see also Daniel J. Gervais,
Towards a New Core International Copyright Norm: The Reverse Three-Step Test, 9 MARQ.
INTELL. PROP. L. REV. 1, 13–14 (2005) (“The Berne Convention contains a general rule,
known as the ‘three-step test,’ which guides national legislators . . . with respect to the right
of reproduction. . . . [T]he so-called three-step-test allows exceptions to the reproduction
right: (1) in certain special cases; (2) that do not conflict with the normal commercial
exploitation of the work; and (3) do not unreasonably prejudice the legitimate interests of
the author. . . . The three-step test has become the cornerstone for almost all exceptions to
all intellectual property rights at the international level. It has been used as the model for
exceptions to all copyright rights in the TRIPS Agreement (Article 13), to the rights created
by the WIPO Copyright Treaty (Article 10), and the WIPO Performances and Phonograms
Treaty (Article 16). Interestingly, in the TRIPS Agreement, it is also the basis for exceptions
to industrial design protection (Article 26(2)), and patent rights (Article 30).”).
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II. DIGITAL COPYRIGHT AND THE COPYRIGHT SOCIAL UTILITY
BALANCING MECHANISMS
Since the latter decades of the twentieth century, the advent
of digital information technology has presented novel socio-legal
challenges to copyright law.9 Almost from the very outset of the
information age, digital information capabilities dissolved the
practical impediments to unauthorized engagement in virtually
all of the uses of copyrighted material that have been traditionally
reserved as exclusive to copyright owners.10 While these
9.
See BENJAMIN GIBERT, THE LISBON COUNCIL, THE 2015 INTELLECTUAL PROPERTY
GROWTH INDEX: MEASURING THE IMPACT OF EXCEPTIONS AND LIMITATIONS
IN
COPYRIGHT
ON
GROWTH,
JOBS
AND
PROSPERITY
2
(2015),
http://innovationeconomics.net/component/attachments/attachments.html?id=268&task=v
iew (“The rise of digital technologies has irrevocably transformed the global economy by
revolutionising modes of production, distribution and innovation. . . . These days,
disruptive innovations are creatively destroying older business models at an increasing rate
with little concern for national borders. . . . Yet, intellectual property—and copyright in
particular—is increasingly seen as restricting innovation in other key areas such as content
delivery, collaborative research and decentralized creative processes. . . . Ensuring that
copyright law stimulates creativity in this new innovation environment is not an esoteric
policy concern. Copyright, whether we like it or not, is now at the very heart of economic
policy in general and innovation strategy in particular. Today’s policy decisions will
determine whether we shackle our innovation system, or equip it with the tools it needs to
thrive in the unpredictable digital future.”); Paul Belleflamme & Martin Peitz, Digital
Piracy: Theory, in THE OXFORD HANDBOOK OF THE DIGITAL ECONOMY 489, 489 (Martin
Peitz & Joel Waldfogel eds., 2012) (“Over the last two decades, the fast penetration of the
Internet and the digitization of information products (music, movies, books, and software)
have led an increasing number of consumers to copy and distribute information products
without the authorization of their legal owners, a phenomenon known as ‘digital piracy.’
Content industries (with record companies at the forefront) were quick to blame digital
piracy for huge revenue losses and to take legal actions against file-sharing technologies
and their users. Policy makers also reacted by gradually reinforcing copyright law. In
general, digital technologies and the Internet have deeply modified the interaction between
copyright holders, technology companies and consumers . . . . As importantly, a public
policy perspective has to be taken; here, the main issue is to evaluate the extent to which
social interests are aligned with the interests of copyright owners.”).
10. See, e.g., Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach
to Copyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 249, 254 (1996)
(“Digitization allows users to easily retransmit materials. Users may use scanners to
digitize photos or texts that are published in a traditional form . . . . Retransmission
through digitized versions is both easy and inexpensive. Everything digitized may be
reproduced in seconds and at low cost.”); Lateef Mtima, The Changing Landscape of Internet
Use and Dissemination of Copyrighted Works: New Tools, New Rules, or the Same Old
Regime?, COMPUTER & INTERNET LAW., Oct. 2007, at 1, 4 (“[U]ntil the digital . . . revolution,
the . . . division between the copyright holder’s exclusive rights and the public uses and
privileges worked relatively well. . . . [H]owever, the real reason that members of the public
were not likely to infringe upon a copyright holder’s exclusive rights . . . was one of basic
practicality. Making multiple copies or engaging in the mass distribution of copyrighted
material was an expensive undertaking, and one that was difficult to conceal. With the
advent of digital technology, however, the practical obstacles to surreptitious copyright
infringement largely disappeared. Today, possession of a single digital copy enables
reproduction and distribution of a copyrighted work to an infinite number of people and all
AND ECONOMIC
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developments undermined many of the prevailing business models
for the commercial exploitation of copyrighted works, they also
opened new frontiers of copyright social utility for the public as a
whole.11 Consequently, copyright law and policy makers
throughout the globe have worked to adapt their copyright
regimes to accommodate the social benefits of digital information
technology, while at the same time undertaking to preserve rights
holder economic incentives and related interests.12
As a threshold matter, lawmakers adopted various, socially
balanced amendments to the copyright law. In the United States,
Congress extended copyright protection to computer software
programs, while concomitantly adopting section 117 of the Copyright
Act, which permits users to engage in certain of the copyright owner’s
exclusive rights in connection with the ordinary use of such works.13
Congress would later pass the Digital Millennium Copyright Act,14
from the privacy of a personal laptop.”); Wendy M. Pollack, Note, Tuning in: The Future of
Copyright Protection for Online Music in the Digital Millennium, 68 FORDHAM L. REV. 2445,
2445–46 (2000) (“Digitization of copyrighted materials permits instantaneous, simplified
copying methods that produce nearly perfect copies of originals. These copies can be
digitally delivered to thousands of Internet users. Decentralization and anonymity in
cyberspace have allowed for the widespread dissemination of copyrighted materials without
permission from their owners.”).
11. See, e.g., Michael J. Madison, Social Software, Groups, and Governance, 2006
MICH. ST. L. REV. 153, 153, 160 (“The ‘personal computing’ technology paradigm of the last
twenty years has done much to expand the scope of individual agency in the context of law
and policy. Computers help individuals to create and consume information at
unprecedented scale and at unprecedented speed.”); Hannibal Travis, Building Universal
Digital Libraries: An Agenda for Copyright Reform, 33 PEPP. L. REV. 761, 763 (2006) (“With
the widespread use of personal computers and the Internet, it has finally become feasible
to create open access, efficiently searchable, infinitely reproducible digital libraries on the
scale of the world’s great physical libraries.”).
12. See, e.g., Belleflamme & Peitz, supra note 9, at 491–92.
13.
See N AT ’L COMM’ N OF N EW TECH . USES OF COPYRIGHTED W ORKS, FINAL
REPORT AND RECOMMENDATION (1978), reprinted in 5 COPYRIGHT, CONGRESS &
T ECHNOLOGY : THE P UBLIC RECORD 32–39 (Nicholas Henry ed., 1980); MELVILLE B.
N IMMER & DAVID NIMMER, N IMMER ON COPYRIGHT § 2.04[C][1], at 2-50 to 2-51 n.26
(2015) (“[The] CONTU [Final Report] concluded that ‘it was clearly the intent of
Congress to include computer programs within the scope of copyrightable subject
matter in the Act of 1976.’ [The Report] further recommended that such protection for
computer programs should be continued, with appropriate changes in 17 U.S.C.
§ 117. . . . Congress amended the current Act via the Computer Software Copyright Act
of 1980.” (internal citations omitted)).
14. 17 U.S.C. § 512 (2012). The DMCA was passed in part to bring the United States
in compliance with the WIPO Copyright Treaty (WCT), promulgated in 1996 to address
questions of digital copyright not covered by the Berne Convention. The Treaty expressly
notes “the need . . . to provide adequate solutions to the questions raised by . . . the
profound impact of the development and convergence of information and communication
technologies on the creation and use of literary and artistic works . . . .” WIPO Copyright
Treaty pmbl., Dec. 20, 1996, S. TREATY DOC. No. 105-17 (1997) [hereinafter WCT]. Among
other things, the Treaty extends copyright protection to computer software programs as
literary works, grants authors the exclusive right of communication of their works to the
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which, among other things, balances the interests of copyright
owners and users, including Internet Service Providers (ISPs), with
respect to Internet use of copyrighted material. Similarly, the
European Union issued various directives to bring software
programs within the ambit of copyright protection,15 to resolve the
question of ISP liability for subscriber copyright infringement,16 and
to otherwise balance digital copyright owner and user interests.17
Indeed, the initiatives to accomplish the socially balanced
incorporation of digital information advances have by no means been
restricted to Western copyright regimes. The Copyright Law of the
People’s Republic of China includes a body of independent statutory
provisions that similarly implement copyright protection for software
programs, regulate Internet use of copyrighted material, and address
a number of other digital copyright issues and developments.18
Some of the most important balancing of digital copyright
interests, however, has taken place in the courts. Employing
traditional copyright social balancing mechanisms, courts are able
public, and grants authors of software programs, cinematographic works, and phonograms
an exclusive rental right. Id. arts. 2, 4, 6–7.
15. See Directive 2009/24/EC, of the European Parliament and of the Council of Apr.
23, 2009, on the Legal Protection of Computer Programs, 2009 O.J. (L 111) 16.
16. See Directive 2001/29/EC, of the European Parliament and of the Council of May
22, 2001, on the Harmonisation of Certain Aspects of Copyright and Related Rights in the
Information Society, 2001 O.J. (L 167) 10 [hereinafter Directive 2001/29/EC].
17. See, e.g., Directive 2004/48/EC, of the European Parliament and of the Counsel of
Apr. 29, 2004, on the Enforcement of Intellectual Property Rights, art. 3, 2004 O.J. (L 157)
45, 61 (requiring Member States to adopt “effective, proportionate and dissuasive”
measures, procedures and remedies to counter digital infringement activity, and further
requires that such measures be “fair and equitable” and not be “complicated or costly,” nor
act as barriers to trade). Pursuant to 2000/278/EC, the Council of the European Union
approved the WCT on behalf of the European Community, and the EU Member States are
also individual signatories to the Treaty. Council Decision 2000/278/EC of Mar. 16, 2000,
on the Approval, on Behalf of the European Community, of the WIPO Copyright Treaty and
the WIPO Performances and Phonograms Treaty, arts. 1, 3, 2000 O.J. (L 89) 6, 6–7.
18. See Decree of the State Council of the People’s Republic of China No. 468
[Regulations for Protection of the Right of Communication through Information Network]
(promulgated by the Premier, Wen Jaibao, May 18, 2006, effective July 1, 2006) WIPO,
http://wipo.int/edocs/lexdocs/laws/en/cn/cn064en.pdf; Decree of the State Council of the
People’s Republic of China No. 339 [Regulations on Computer Software Protection]
(promulgated by the Premier, Zhu Rongji, Dec. 20, 2001, effective Jan. 1, 2002) WIPO,
http://wipo.int/wipolex/en/details.jsp?id=13396. The Measures for the Administrative
Protection of Internet Copyright and the Regulations on the Protection of the Right to
Network Dissemination of Information provide a variety of rights to authors, performers,
the producers of phonograms, and others with respect to Internet use of their works,
including the exclusive right of communication through information networks, which
includes the Internet as well as broadcasting and mobile networks. Measures for the
Administrative Protection of Internet Copyright (promulgated by the National Copyright
Administration, the Ministry of Information Industry, Apr. 29, 2005) (China); The Criminal
Law of the People’s Republic of China, 73 J. CRIM. L. & CRIMINOLOGY 138 (1982). China has
also adopted the WCT.
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to undertake ad hoc assessments of the social utilities implicated
by digital innovations.
Most copyright law and policy makers and commentators
consider fair use, particularly as practiced in the United States, to
be the most flexible of the copyright social balancing mechanisms,
in that it provides for an intentionally non-exhaustive list of
factors to be considered in determining whether an unauthorized
use should be allowed.19 At the other end of the spectrum is the
copyright limitations and exceptions approach, which provides for
an exhaustive enumeration of specific uses of copyrighted material
that can be undertaken without the copyright holder’s
permission.20 The third prevailing approach to copyright social
balancing, that of fair dealing, might be considered a combination
of fair use and copyright limitations, in that it provides for both an
exhaustive list of specific, permitted unauthorized uses, but
further requires judicial consideration of certain factors in the
determination as to whether it would in fact be “fair” to permit a
particular unauthorized use.21
Courts throughout the global copyright system have utilized
copyright social balancing mechanisms to accommodate the
benefits of digital information technology. The characteristics of
the three leading approaches, and their application in digital
copyright disputes, are briefly summarized below.
A. The Fair Use Doctrine
Fair use originated as a creature of common law in the United
States, in accordance with which courts permitted the
unauthorized use of copyrighted material for certain purposes that
further the overarching objectives of the copyright law.22 In the
United States, the fundamental purpose of copyright protection is
to promote the progress of the arts and sciences to advance
American learning and culture.23 One means by which this is
accomplished is the statutory grant of specific and exclusive
19. See, e.g., 17 U.S.C. § 107 (2012).
20. See, e.g., Directive 2001/29/EC, supra note 16, art. 5, at 16–17.
21. See, e.g., Canadian Copyright Act, R.S.C. 1985, c C-42, § 29.
22. See, e.g., Folsom v. Marsh, 9 F. Cas. 342, 348–49 (C.C.D. Mass. 1841) (No. 4901).
23. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (“The
immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative
labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the
general public good.”); see also Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S.
539, 558 (1985); Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 428–29 (1984).
See generally Craig Joyce, Intellectual Property in the United States, in 3 OXFORD
INTERNATIONAL ENCYCLOPEDIA OF LEGAL HISTORY 265, 265–74 (Stanley N. Katz ed., 2009).
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property rights to authors, so as to provide them with economic
incentives to produce copyrightable expression. Another means,
however, is to limit those exclusive rights, as necessary, to ensure
that the fundamental purpose of the law is served. Consequently,
early in the development of American copyright law, courts
recognized an inherent public privilege to make “fair use” of
copyrighted material, and thus to intrude upon an author’s
exclusive property rights for such purposes as educational and
literary discourse and comment.24 Fair use has since developed
into the predominant judicial tool in American copyright law for
balancing author exclusive rights against the broader social utility
objectives of the copyright law.25
Fair use allows courts to account for those situations in
which the unauthorized use of copyrighted material will serve
important social utilities, while causing little, or at least
justifiable, detriment to an author’s economic incentive
interests. Accordingly, rather than predetermine a list of
particular activities in which members of the public may engage
without the copyright holder’s permission, fair use instead
permits courts to weigh the following four statutory factors in
evaluating whether an unauthorized use should be permitted as
a fair use: (1) the purpose and the character of the use, including
whether the use is a transformative one; 26 (2) the nature of the
24. See, e.g., Pamela Samuelson, Fair Use for Computer Programs and Other
Copyrightable Works in Digital Form: The Implications of Sony, Galoob and Sega, 1 J.
INTELL. PROP. L. 49, 56–57 (1993) (“Courts have often relied upon fair use to resolve
disputes when recognition of broad rights in publishers or authors would have frustrated
achievement of the societal purposes of copyright law. In the American tradition, the
ultimate purpose of copyright is not the maximization of financial rewards to copyright
owners . . . but fostering the creation and dissemination of literary and artistic works in
order to enhance the public’s access to knowledge. The grant of exclusive rights to authors
enabling them to reap a portion of the value derived from their creative contributions is a
means to this larger end.”).
25. See PATRICIA AUFDERHEIDE & PETER JASZI, RECLAIMING FAIR USE: HOW TO PUT
BALANCE BACK IN COPYRIGHT 24–25 (2011); see, e.g., Field v. Google, Inc., 412 F. Supp. 2d
1106, 1117 (D. Nev. 2006) (“The fair use doctrine ‘creates a limited privilege in those other
than the owner of a copyright to use the copyrighted material in a reasonable manner
without the owner’s consent,’ . . . and ‘permits courts to avoid rigid application of the
copyright statute when, on occasion, it would stifle the very creativity which that law is
designed to foster.” (internal citations omitted)); see also Sega Enters. Ltd. v. Accolade, Inc.,
977 F.2d 1510, 1520–27 (9th Cir. 1992); Madison River Mgmt. Co. v. Bus. Mgmt. Software
Corp., 387 F. Supp. 2d 521, 535–37 (M.D.N.C. 2005); Samuelson, supra note 24, at 51 (“Fair
use has historically served as a flexible and adaptable mechanism for balancing the
interests of copyright owners, their competitors or potential competitors, and the public to
fulfill the larger purposes of copyright law which have traditionally been understood to be
promoting the production and dissemination of knowledge.”).
26. See Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1110
(1990). In his seminal article exploring the social objectives underlying fair use, Judge Leval
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copyrighted work, that is, whether it is primarily a creative
work, such as a fiction novel, or a factual work, such as a news
article; (3) the amount and substantiality of the work used
without the author’s permission; and (4) the effect that allowing
the unauthorized use is likely to have on the commercial market
for the copyrighted work. 27
B. Fair Use and Digital Copyright
In the United States, fair use has been critically important in
assessing the social utility potential of digital applications for
copyrighted material.28 For example, in Kelly v. Arriba Soft
Corp.,29 the defendant compiled a searchable database of more
than two million thumbnail versions of copyrighted images that
were already available on the Internet. By utilizing defendant’s
search engine, a user could retrieve a visual index of these
thumbnail images, which also contained hyperlinks to the full size
images at the originating websites. By clicking on a thumbnail
image, the user could automatically link to the website where the
original image actually resided—in short, defendant provided a
means for locating images on the Internet. The plaintiff in Kelly
owned the copyrights in some of the images recreated as
thumbnails in defendant’s database, and thus brought suit
alleging that this unauthorized use of his works constituted
proposed that in order to be a fair use “the use must be of a character that serves the
copyright objective of stimulating productive thought and public instruction without
excessively diminishing the incentives for creativity.” Id. In keeping with these objectives,
fair use “protects secondary creativity as a legitimate concern of the copyright law.” Id.
Judge Leval therefore further proposed that these goals can be assured by assessing
whether the unauthorized use is transformative, meaning, does the use further the purpose
of copyright by transforming the work toward new expression, or utilizing the work for a
different copyright purpose than that intended by the author. See, e.g., Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 574–77, 579 (1994).
27. See 17 U.S.C. § 107 (2012); Harper & Row, 471 U.S. at 549 (“Fair use was
traditionally defined as ‘a privilege in others than the owner of the copyright to use the
copyrighted material in a reasonable manner without his consent.’ . . . The statutory
formulation of the defense of fair use in the Copyright Act reflects the intent of Congress to
codify the common-law doctrine.” (internal citation omitted)); see also Sony, 464 U.S. at
448–51; SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1264 (11th Cir. 2001);
Rogers v. Koons, 960 F.2d 301, 308 (2d Cir. 1992).
28. Early in the development of digital copyright jurisprudence, American courts
permitted a variety of unauthorized digital uses of copyrighted material as fair uses. See,
e.g., Sega, 977 F.2d at 1527 (holding that unauthorized copying of a software program solely
for the purpose of studying its structure and to design new programs is a fair use);
Evolution, Inc. v. Suntrust Bank, 342 F. Supp. 2d 943, 956 (D. Kan. 2004) (holding that
unauthorized copying undertaken in order to extract unprotected material constitutes a
fair use of protected code); see also Samuelson, supra note 24, at 56.
29. Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, 1116–17 (C.D. Cal. 1999),
modified, 336 F.3d 811 (9th Cir. 2003).
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infringement of his exclusive reproduction and derivative work
rights.30
In response to plaintiff’s claims, the defendant argued that its
use was a transformative fair use. The court agreed.
The most significant factor favoring Defendant is the
transformative nature of its use of Plaintiff’s
images. . . . Plaintiff’s photographs are artistic works used
for illustrative purposes. Defendant’s visual search engine is
designed to catalog and improve access to images on the
Internet. The character of the thumbnail index is not
esthetic, but functional; its purpose is not to be artistic, but
to be comprehensive.31
Concluding that the remaining fair use factors also favored
allowing defendant’s use, the court held for the defendant.32
Similarly, in Authors Guild, Inc. v. Google, Inc.,33 the court
held that the Google Books Project, which undertook digital scans
of books in several university libraries in order to enhance public
access to, scholarly research in, and archival preservation of these
books, also constitutes a transformative fair use.
Google’s use of the copyrighted works is highly
transformative. Google Books digitizes books and transforms
30. Kelly, 336 F.3d at 815–17.
31. Kelly, 77 F. Supp. 2d at 1119 (internal citation omitted).
32. Kelly, 336 F.3d at 822. See also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d
1146, 1165 (9th Cir. 2007), wherein plaintiff was the proprietor of an Internet site that
provided images of nude women to paying subscribers. Plaintiff alleged that by using
co-defendant Google’s search indices, users could not only locate plaintiff’s images but they
could also locate sites that posted infringing copies of plaintiff’s photographs. Nonetheless,
the court concluded that the instant search engine also qualified as a transformative Fair
Use.
Google’s use of thumbnails is highly transformative. In Kelly we concluded that
Arriba’s use of thumbnails was transformative because “Arriba’s use of the images
serve[d] a different function than Kelly’s use—improving access to information on
the [I]nternet versus artistic expression.” . . . Although an image may have been
created originally to serve an entertainment, aesthetic, or informative function, a
search engine transforms the image into a pointer directing a user to a source of
information. Just as a “parody has an obvious claim to transformative value”
because “it can provide social benefit, by shedding light on an earlier work, and,
in the process, creating a new one,” . . . a search engine provides social benefit by
incorporating an original work into a new work, namely, an electronic reference
tool. Indeed, a search engine may be more transformative than a parody because
a search engine provides an entirely new use for the original work, while a parody
typically has the same entertainment purpose as the original work. . . . In other
words, a search engine puts images “in a different context” so that they are
“transformed into a new creation.”
Id. (internal citations omitted).
33. Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282, 291 (S.D.N.Y. 2013), aff’d,
No. 13-4829-cv, 2015 WL 6079426 (2d Cir. Oct. 16, 2015).
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expressive text into a comprehensive word index that helps
readers, scholars, researchers, and others find books. Google
Books has become an important tool for libraries and
librarians and cite-checkers as it helps to identify and find
books. The use of book text to facilitate search through the
display of snippets is transformative. The display of snippets
of text for search is similar to the display of thumbnail
images of photographs for search or small images of concert
posters for reference to past events, as the snippets help
users locate books and determine whether they may be of
interest. Google Books thus uses words for a different
purpose—it uses snippets of text to act as pointers directing
users to a broad selection of books. Similarly, Google Books
is also transformative in the sense that it has transformed
book text into data for purposes of substantive research,
including data mining and text mining in new areas, thereby
opening up new fields of research. Words in books are being
used in a way they have not been used before. Google Books
has created something new in the use of book text—the
frequency of words and trends in their usage provide
substantive information.34
In general, courts in the United States have proven quite
adept at employing fair use to promote digital copyright social
utility.35
C. Copyright Limitations and Exceptions: The European Union
The copyright law of the European Union36 provides the
seminal model of copyright limitations and exceptions. EU
34. Id.; see also Lateef Mtima, The Promise of Information Justice, in CYBERSPACE
LAW: CENSORSHIP AND REGULATION OF THE INTERNET 54, 64–70 (Hannibal Travis ed.,
2013); Travis, supra note 11, at 820–24.
35. Authors Guild, 2015 WL 6079426, at *8–9 (“We have no difficulty concluding that
Google’s making of a digital copy of Plaintiffs’ books for the purpose of enabling a search for
identification of books containing a term of interest to the searcher involves a highly
transformative purpose. . . . [T]he purpose of Google’s copying of the original copyrighted
books is to make available significant information about those books, permitting a searcher
to identify those that contain a word or term of interest, as well as those that do not include
reference to it. In addition, through the ngrams tool, Google allows readers to learn the
frequency of usage of selected words in the aggregate corpus of published books in different
historical periods. We have no doubt that the purpose of this copying is the sort of
transformative purpose described . . . as strongly favoring satisfaction of the first [fair use]
factor.”). Many legal scholars and commentators have supported these trends. See, e.g.,
Matthew Sag, Orphan Works as Grist for the Data Mill, 27 BERKELEY TECH. L.J. 1503, 1526
& n.112, 1548 (2012) (arguing that copying for non-expressive or “non-consumptive”
purposes, such as the automated extraction of data, should not be considered infringing
conduct).
36. The European Union is a political–economic union of several European nations,
the origins of which can be traced to the aftermath of World War II and the establishment
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copyright law is the product of a multi-national initiative to
harmonize the copyright laws of the participating European
nations (the Member States), many of which have copyright
regimes that are centuries old and which can vary significantly,
particularly between common law and civil law countries. Building
upon the provisions of the Berne Convention,37 to which all of the
Member States are signatories, the European Union has issued
various directives38 that obligate the Member States to enact into
their individual copyright regimes additional common features,
rights, and limitations, including rights and limitations pertinent
to digital information technology, and to incorporate the
judgments of and legal principles formulated by the European
Court of Justice (ECJ).39 Accordingly, the copyright law of the
European Union “begins” with the Berne Convention, which
provides the basic prerequisites to and elements of copyright
protection, and which further permits its signatories to provide for
specific limitations upon or exceptions to the rights afforded
thereunder. The EU Copyright Directive and other EU directives
then build upon the Berne “baseline,” incorporating additional
rights and limitations, which collectively harmonize, and to some
extent modernize, the copyright laws of the Member States.
Neither the Berne Convention nor the EU directives provide
for a flexible “fair use” mechanism through which the public may
make unauthorized use of copyrighted works. Instead, the Berne
Convention and the EU directives collectively enumerate specific
limitations and exceptions in connection with the copyright
owner’s exclusive rights, which provide for the unauthorized use
of copyrighted works, typically under circumstances that promote
of the European Coal and Steel Community in 1952. The European Union was formally
established by the Maastricht Treaty in 1993, which also introduced the mechanism of
European Citizenship. See Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191) 1–2,
7.
37. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886,
1161 U.N.T.S. 3 (amended Sept. 28, 1979). The European Union Copyright Directive was
adopted by the European Union mutatis mutandis with the Berne Convention, meaning
that EU copyright law is effectively comprised of the provisions of Berne, which provide the
baseline elements of EU copyright, such as the prerequisites to protection, as supplemented
or added to by the EU copyright directives.
38. See, e.g., Directive 2001/29/EC, supra note 16 (expanding previous directives of
the EU to apply in the “information society” context).
39. The European Court of Justice is the highest court in the European Union with
respect to the interpretation of European Union law, and among other things, it ensures
the consistent application of EU law by the Member States. Although it is not possible to
appeal a decision of a national court of a Member State to the ECJ, national courts refer
questions of EU law to the ECJ, and in turn apply the Court’s interpretation of EU law. See
Karen J. Alter, Who Are the “Masters of the Treaty”?: European Governments and the
European Court of Justice, 52 INT’L ORG. 121, 124–25 (1998).
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the public interest in advancing science, education, and culture.
For example, pursuant to Article 5 of the European Union
Copyright Directive, Member States are permitted to adopt
limitations that allow for unauthorized non-commercial
reproduction of copyrighted material for private use and by public
libraries, educational institutions, or archives; unauthorized use
in connection with teaching or scientific research; unauthorized
uses directly related to a disability; unauthorized use for press
reviews and news reporting, and quotations for purposes of
criticism or review; caricature, parody, or pastiche; unauthorized
use in connection with the demonstration or repair of equipment;
and for incidental inclusion in another work.40 In accordance with
the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS), any such limitations and exceptions must only be
applied in special cases and in ways that do not conflict with the
normal exploitation of the work, and do not unreasonably
prejudice the legitimate interests of the copyright owner.41
D. EU Copyright Limitations and Exceptions and Digital
Copyright
In as much as EU copyright law only provides for enumerated
copyright limitations and exceptions, any unauthorized
engagement in a copyright holder’s exclusive rights (digital or
otherwise) must fit within a recognized limitation or exception in
order to be allowed. For example, in Infopaq International A/S v.
Danske Dagblades Forening,42 the defendant conducted a “media
monitoring and analysis business” in connection with which it
prepared “summaries” of selected articles from newspapers and
periodicals. The summaries were prepared by making automated
scans and then printing snippets of the articles, which were
40.
Additional possible limitations include uses for the purposes of public
security or in administrative, parliamentary, or judicial proceedings; uses of political
speeches and extracts of public lectures, to the extent justified by public information;
uses during religious or official celebrations; preservation of recordings of broadcasts
in official archives; reproductions of broadcasts by social, non -commercial institutions
such as hospitals and prisons, provided compensation is paid to the copyright holder;
uses of works, such as architecture or sculpture, which are located permanently in
public places; use for the advertisement of the public exhibition or sale of art; use of a
protected work (e.g., plans) for the reconstruction of a building; and communication of
works to the public within the premises of public libraries, educational institutions,
museums, or archives. Directive 2001/29/EC, supra note 16, art. 5, at 16–17. Member
States also are permitted to retain limitations that were in effect as of June 22, 2001.
Id. art 1.2, at 15.
41. See TRIPS, supra note 8, art. 13; see also Directive 2001/29/EC, supra note 16.
42. Case C-5/08, Infopaq Int’l A/S v. Danske Dagblades Forening, 2009 E.C.R.
I-06569.
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converted into digital files and then provided to defendant’s
customers. The plaintiff, a professional association of newspaper
publishers, sued for copyright infringement, and in response,
defendant argued that its activities fell within a recognized
exception which permits temporary acts of reproduction.43
The court began its analysis by observing that:
[Defendant’s] data capture process . . . involves two acts of
reproduction: the creation of a TIFF file when the printed
articles are scanned and the conversion of the TIFF file into
a text file. In addition . . . this procedure entails the
reproduction of parts of the scanned printed articles since the
extract of 11 words is stored and those 11 words are printed
out on paper.44
The court then determined that the dispute presented three
questions for disposition: whether defendant’s activities
constituted reproduction within the meaning of the EU copyright
directives, and if so, whether they involve protectable expression,
and finally, whether such activities fall within the exception
provided for certain temporary acts of reproduction.45
With respect to whether defendant’s practice involved the use
of protectable expression, the court held that, consistent with the
Berne Convention, whether the extracted snippets were sufficient
to constitute copyrightable expression was a question for the
Member State to determine.46 The court further held, however,
43. Article 5 provides:
1. Temporary acts of reproduction referred to in Article 2, which are transient or
incidental [and] an integral and essential part of a technological process and
whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use of a work or other subject-matter to be made, and which have
no independent economic significance, shall be exempted from the reproduction
right provided for in Article 2.
Directive 2001/29/EC, supra note 16, art. 5.1, at 16.
44. Infopaq, E.C.R. I-06569, para. 24.
45. Id. paras. 26–53.
46.
Id. paras. 34, 45–48 (“It is . . . apparent from the general scheme of the Berne
Convention, in particular Article 2(5) and (8), that the protection of certain
subject-matters as artistic or literary works presupposes that they are intellectual
creations. . . . Regarding the elements of such works covered by the protection, it
should be observed that they consist of words which, considered in isolation, are not as
such an intellectual creation of the author who employs them. It is only through the
choice, sequence and combination of those words that the author may express his
creativity in an original manner and achieve a result which is an intellectual
creation. . . . That being so . . . the possibility may not be ruled out that certain isolated
sentences, or even certain parts of sentences in the text in question, may be suitable
for conveying to the reader the originality of a publication such as a newspaper article,
by communicating to that reader an element which is, in itself, the expression of the
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that assuming arguendo that protectable matter was involved,
defendant’s practice involved reproduction within the meaning of
the EU directives, in that “an act occurring during a data capture
process, which consists of storing an extract of a protected work
comprising 11 words and printing out that extract, is such as to
come within the concept of reproduction . . . .”47 Accordingly, to the
extent that defendant’s “data capture process” involved
copyrightable material, it could only be permitted if it fell within
the subject exemption.
The Court finds . . . those acts of reproduction must not
exceed what is necessary for the proper completion of that
technological process. Legal certainty for right holders
further requires that the storage and deletion of the
reproduction not be dependent on discretionary human
intervention, particularly by the user of protected
works. . . . In the light of the foregoing, the Court finds
that an act can be held to be ‘transient’ within the meaning
of the second condition laid down in Article 5(1) of
Directive 2001/29 only if its duration is limited to what is
necessary for the proper completion of the technological
process in question, it being understood that that process
must be automated so that it deletes that act
automatically, without human intervention, once its
function of enabling the completion of such a process has
come to an end. . . . It is common ground, however, that,
by the last act of reproduction in the data capture process,
[defendant] is making a reproduction outside the sphere of
computer technology. It is printing out files containing the
extracts of 11 words and thus reproduces those extracts on
a paper medium. . . . In those circumstances, the Court
finds that the last act in the data capture process . . . is
not a transient act within the meaning of Article 5(1) of
Directive 2001/29.48
Thus in accordance with the provisions of the Berne
Convention, it is left to each Member State to determine whether
“search-snippets” meet the threshold for copyright protection;
however, if they constitute protectable expression, even if the court
intellectual creation of the author of that article. Such sentences or parts of sentences
are, therefore, liable to come within the scope of the protection provided for in Article
2(a) of that directive. In the light of those considerations, the reproduction of an extract
of a protected work . . . is such as to constitute reproduction in part within the meaning
of Article 2 of Directive 2001/29, if that extract contains an element of the work which,
as such, expresses the author’s own intellectual creation; it is for the national court to
make this determination.”).
47. Id. para. 51.
48. Id. paras. 61–70.
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considers the digital innovation of “snippet-search” and indexing
as falling within the exception for temporary or transient
reproduction, the “analogue” hard-copy (and thus non-transient)
print outs would not fit within the exception.
E. Fair Dealing
Fair dealing can sometimes be regarded as a combination of
copyright limitations and exceptions with “fair use type” factors,
the latter serving to ensure that where a specific activity fits
within a recognized limitation or exception, allowing the activity
to proceed will in fact lead to socially equitable and beneficial
results.49 Depending upon how this “second step” in the fair
dealing assessment is approached, fair dealing might be
considered more flexible than strict copyright limitations and
exceptions, or it could in practice prove to be more restrictive,
given that even a use that fits within a recognized category of
limitation could still be precluded by a court as being subjectively
inequitable or unfair.
In Canada for example, fair dealing is codified at section 29 of
the Copyright Act, which enumerates research or private study,
criticism or review, news reporting, and parody or satire as
activities of fair dealing. If a use is found to fit within one of these
categories, the court then will proceed to determine whether
allowing it would be fair under the circumstances.
To take advantage of the exceptions set out above, a
defendant must show that its dealings have been fair. What
will constitute fair dealing is not defined in the Act and
depends on the facts of each case. The elements of fairness
are malleable and can be tailored to each unique set of
circumstances.50
Among the factors to be considered in determining whether
a defendant’s dealings should be allowed as fair are (1) the
purpose of the dealing; (2) the character of the dealing; (3) the
amount of the dealing; (4) alternatives to the dealing; (5) the
nature of the work; and (6) the effect of the dealing on the work.
Fair dealing preserves copyright social utility by recognizing
49. See JOHN S. MCKEOWN, CANADIAN INTELLECTUAL PROPERTY LAW AND STRATEGY
289–90 (2010). “Unlike the American approach of proceeding straight to the fairness
assessment, we do not engage in the fairness analysis in Canada until we are satisfied that
the dealing is for one of the allowable purposes enumerated in the Copyright Act.” Soc’y of
Composers, Authors & Music Publishers of Can. v. Bell Can., [2012] 2 S.C.R. 326, 337
(Can.). The Copyright Act also provides for other exceptions in addition to fair dealing.
50. MCKEOWN, supra note 49, at 290.
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rights in copyrighted material on behalf of both copyright
owners and users.
The Supreme Court of Canada has made it clear that the fair
dealing exception should not be restrictively interpreted. The fair
dealing exception like other exceptions in the Act, is a user’s right.
In order to maintain the proper balance between the rights of a
copyright owner and a user’s interest, it should be given a fair and
balanced reading applicable to remedial legislation.51
F. Fair Dealing and Digital Copyright
In Society of Composers, Authors and Music Publishers of
Canada v. Bell Canada,52 the plaintiff rights holder organization
sought royalty payments in connection with the use of its
members’ works by the defendant to provide online music
“previews,” which consisted of 30 to 90 second excerpts, and
which enabled defendants’ customers to sample material before
deciding whether to purchase it. The defendant argued that its
activities fell within the fair dealing exception for research or
private study.
In finding for the defendant, the court noted that the
exception should be interpreted broadly, and assessed with the
benefits that digital previewing affords in mind.
The purpose of the fair dealing analysis under the
Copyright Act is to determine whether the proper balance
has been achieved between protection of the exclusive
rights of authors and copyright owners and access to their
works by the public. . . . The first step is to determine
whether the dealing is for the purpose of either “research”
or “private study”, the two allowable purposes listed under
51. Id. at 290–92. See, e.g., Law Soc’y of Upper Canada v. CCH Canadian Ltd., [2004]
1 S.C.R. 339, 342 (Can.) (“Under s. 29 of the Copyright Act, fair dealing for the purpose of
research or private study does not infringe copyright. ‘Research’ must be given a large and
liberal interpretation in order to ensure that users’ rights are not unduly constrained, and
is not limited to non-commercial or private contexts. Lawyers carrying on the business of
law for profit are conducting research within the meaning of s. 29. The following factors
help determine whether a dealing is fair: the purpose of the dealing, the character of the
dealing, the amount of the dealing, the nature of the work, available alternatives to the
dealing, and the effect of the dealing on the work. Here, the Law Society’s dealings with the
publishers’ works through its custom photocopy service were research-based and fair. The
access policy places appropriate limits on the type of copying that the Law Society will do.
If a request does not appear to be for the purpose of research, criticism, review or private
study, the copy will not be made. If a question arises as to whether the stated purpose is
legitimate, the reference librarian will review the matter. The access policy limits the
amount of work that will be copied, and the reference librarian reviews requests that exceed
what might typically be considered reasonable and has the right to refuse to fulfill a
request.”).
52. Bell Canada, [2012] 2 S.C.R. at 327 (Can.).
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s. 29 of the Copyright Act. The second step assesses
whether the dealing is “fair”. . . . The purpose of “research”
should be analyzed from the perspective of the consumer
as the ultimate user, not the online service provider. The
Board properly considered the previews from the
perspective of the consumer’s purpose, namely, conducting
research to identify which music to purchase. “Research”
need not be for creative purposes only. Permitting only
creative purposes to qualify as “research” would ignore the
fact that one of the objectives of the Copyright Act is the
dissemination of the works themselves. Limiting
“research” to creative purposes would also run counter to
the ordinary meaning of “research,” which includes many
activities that do not require the establishment of new
facts or conclusions. The fair dealing exception must not
be interpreted restrictively and “research” must be given
a large and liberal interpretation. 53
The court then easily decided that defendant’s dealings were
fair, in that the previews were brief and transitory, and that there
were no alternatives available that would provide online users the
opportunity to sample music before making the decision to
purchase.
The foregoing cases illustrate how courts use copyright social
balancing mechanisms to accommodate the benefits of digital
information technology as a new technological use for copyrighted
works. As discussed in the next section, digital information
technology also offers unprecedented and thus far largely
untapped opportunities to promote copyright social justice and
thereby further enhance the social utility of the law.
III. INTELLECTUAL PROPERTY SOCIAL JUSTICE IN THE DIGITAL
INFORMATION SOCIETY
Intellectual property protection, including copyright law, is a
social ordering mechanism promulgated to serve a variety of social
utility functions, not the least of which being the advancement of
culture and the stimulation of innovation.54 The intellectual
53. Id. at 327–28.
54.
See Belleflamme & Peitz, supra note 9, at 490 (“Intellectual property (IP)
refers to the legal rights that result from intellectual activity in the industrial,
scientific, literary and artistic fields. Most countries have adopted laws to protect
intellectual property, with the objective to promote innovation and aesthetic
creativity.”); Jane C. Ginsburg, International Copyright: From a “Bundle” of National
Copyright Law to a Supranational Code?, 47 J. COPYRIGHT SOC’ Y USA 265, 267 (2000)
(“[Copyright law] express[es] each sovereign nation’s twin aspirations for its citizens:
exposure to works of authorship, and participation in their country’s cultural
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property law as actually applied, however, does not always fully
effectuate these objectives, and may sometimes even frustrate
these goals. In some situations, intellectual property protection
presents institutional barriers to knowledge, information, and
education. The continuing lack of widespread access to
copyrighted material for the visually disabled is one important
example.
[T]he inability of the blind and other visually impaired
people to have access to printed . . . copies of
books . . . should be the copyright civil rights issue of our
time. In the wealthiest countries, only some 5 percent of
published books are made accessible in formats the visually
impaired can use; this figure drops to less than 1 percent in
poorer countries. Copyright laws are the principal reason for
this scandal.55
patrimony.”). But see Doris Estelle Long, “Democratizing” Globalization: Practicing the
Policies of Cultural Inclusion, 10 CARDOZO J. INT’ L & COMP . L. 217, 217 (2002)
(“Culture and intellectual property appear to have gotten a divorce during the latter
decades of the Twentieth Century.”). While intellectual property regimes rooted in
natural law further recognize the objective of protecting creators’ rights to their
productions, promoting broader social benefits to society is a compatible and
complimentary goal in such regimes. See, e.g., Steven D. Jamar, A Social Justice
Perspective on the Role of Copyright in Realizing International Human Rights, 25 P AC.
MC GEORGE GLOBAL BUS. & DEV . L.J. 289, 296–97 (2012) (“Natural rights . . . are
subject to limitations for the overall public good—indeed, serving the public good is an
obligation under the social contract between a society and its citizens. . . . Intellectual
property—even if founded on natural law—is properly subject to similar limitations
for the public good. As with core human rights like freedom of expression, intellectual
property rights cannot be so absolute that they unduly impinge on other rights . . . or
undermine the public good. . . . Thus, a natural rights perspective is not necessarily
antithetical to crafting intellectual property law, policy, and adm inistration to
encourage innovation and entrepreneurship; balancing interests is the key.”); Jorn
Sonderholm, Ethical Issues Surrounding Intellectual Property Rights, in N EW
F RONTIERS IN THE P HILOSOPHY OF INTELLECTUAL P ROPERTY 110, 117 (Annabelle Lever
ed., 2012) (“The natural right of appropriation central to libertarianism has an
important proviso . . . which is an ‘enough and as good’ clause on original
appropriation. . . . Where resources are scarce, one cannot legitimately stake a claim
to something by annexing one’s labour to it. . . . If the resource is necessary for the
continued well-being of others, then the fact that x was the one who developed or
improved the resource does not give x exclusive rights over it. x’s entitlement to reward
for her labour is overridden by the entitlement of others to that which is necessary for
their survival.”). See generally International Covenant on Economic, Social and
Cultural Rights art. 15(1), Dec. 16, 1966, 993 U.N.T.S. 3; Adam Mossoff, Who Cares
What Thomas Jefferson Thought About Patents? Reevaluating the Patent “Privilege” in
Historical Context, 92 CORNELL L. REV. 953, 971–73 (2007).
55.
W ILLIAM P ATRY , H OW TO F IX COPYRIGHT 10 (2011). Recently some important
progress has been made toward rendering copyrighted works accessible to the blind.
The Marrakesh VIP Treaty, formally the Marrakesh Treaty to Facilitate Access to
Published Works by Visually Impaired Persons and Persons with Print Disabilities ,
was signed by fifty-one nations on June 28, 2013. The treaty provides for copyright
exceptions to facilitate the creation of accessible versions of books and other
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Where individuals who lack such access fail to achieve and
exploit their full potential, it is ultimately society as a whole that
is deprived of the foregone contributions to its intellectual property
inventory.
In other situations, the rules of intellectual property
protection are systemically misused toward socially
counterproductive ends. Marginalized groups in the developed
world as well as communities in many developing nations
perennially suffer the misappropriation and inequitable
exploitation of their indigenous knowledge and cultural
expression, often at the hands of established intellectual
property stakeholders, who in turn insist upon the utmost
respect and protection for their own rights and interests. 56 The
copyrighted works. The ratification of twenty nations is needed for the treaty to go into
effect. See Marrakesh Treaty to Facilitate Access to Published Works for Persons Who
Are Blind, Visually Impaired, or Otherwise Print Disabled arts. 3, 4, June 27, 2013, 52
I.L.M. 1312.
56.
See Keith Aoki, Distributive and Syncretic Motives in Intellectual Property
Law (with Special Reference to Coercion, Agency, and Development), 40 U.C. DAVIS L.
REV . 717, 773–74 (2007) (“The first multilateralism, from the 1500s to 1945, suggests
that, even prior to the end of the nineteenth century, many territories in Africa, Asia,
and the Pacific were already subject to IP conventions and regulations implemented
through formal and informal European control. . . . These arrangements
unsurprisingly had a European flavor, due in no small part to a self-perceived
superiority and attendant ‘responsibility’ to ‘civilize’ the non -Europeans. The
consolidation of formal colonial rule in which IP laws were an integral part soon
followed. IP laws were extended to colonies during this period, in part to advance
colonial strategies of assimilation, incorporation, and control. . . . [T]he second
multilateralism, from 1945 to the 1990s, accompanied the demise of colonialism and
attendant debates as to the appropriate role for developing countries in the
international IP system. New sovereign states were first recognized, and then
conditions were constructed for their participation in international fora without
interrogation into the appropriateness or value of IP laws in their respective domestic
settings. The result was a legitimization of developing countries’ adherence to
colonial-era legislation under the guise of an international legal system wholly
unrelated to domestic priorities and constraints. Meanwhile, treaties used for the
effective subjugation of non-Europeans in the colonial period continued to be the formal
tool of choice to facilitate the developed countries’ strategic exercise of power.”);
Cynthia M. Ho, Biopiracy and Beyond: A Consideration of Socio-Cultural Conflicts with
Global Patent Policies, 39 U. MICH . J.L. REFORM 433, 435–36 (2006) (“[M]any
developing countries have argued that . . . Western countries engage in their own
piracy—’biopiracy’—by taking genetic resources and associated traditional knowledge
from biodiverse developing countries without permission, then patenting related
inventions, but failing to share any of the resulting commercial profits. The process of
obtaining private rights over products derived from third world resources or knowledge
that is considered sacred or beyond private ownership is considered to be morally
offensive to many citizens of developing countries, as well as those with sympathetic
interests in other countries. Moreover, many of these citizens view Western countries
and companies with great suspicion since usurpation of resources harks back to
colonial imperialism.”); Lateef Mtima, What’s Mine Is Mine But What’s Yours Is Ours:
IP Imperialism, the Right of Publicity, and Intellectual Property Social Justice in the
Digital Information Age, 15 SMU SCI. & T ECH . L. REV. 323, 332–36 (2012); see also
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failure of the intellectual property regime to address such
abuses not only discourages intellectual property development
and dissemination by exploited groups and communities, but
also fosters antagonism and disrespect toward intellectual
property protection on a fundamental level. 57
Where the application and enforcement of the intellectual
property law does not encompass redress for social injustice, the
result can be impairment of the law’s overarching social utility
objectives. Evaluating problems of intellectual property social
injustice for their impact on intellectual property social utility
acknowledges that certain social deficiencies gnaw at the very
foundations of intellectual property protection.58 In such cases, it
is not only doctrinally appropriate to re-envision the intellectual
property law as a tool for social justice, it is doctrinally imperative
that the law be interpreted and applied to correct these social
Stephen R. Munzer, Corrective Justice and Intellectual Property Rights in Traditional
Knowledge, in N EW F RONTIERS IN THE P HILOSOPHY OF INTELLECTUAL P ROPERTY, supra
note 54, at 58, 58–59, 61.
57.
See Susan Tiefenbrun, A Hermeneutic Methodology and How Pirates Read
and Misread the Berne Convention, 17 W IS. I NT ’ L L.J. 1, 1 (1999) (“Economics alone
cannot explain why a country chooses to steal books, cassettes, movies, and
computer programs rather than obey the law. The causes and effects of intellectual
property piracy are intricately connected to, and affected by, a multiplicity of
factors including the economy of the country in which the piracy is committed, the
political history and ideology of the pirating nation, the culture of the people
engaged in the piracy, and the adequacy of the legal system to enforce domestic and
international intellectual property laws.”); see also J OHANNA G IBSON , C REATING
S ELVES : I NTELLECTUAL P ROPERTY AND THE N ARRATION OF C ULTURE 4–6 (2006);
Christine Haight Farley, Registering Offense: The Prohibition of Slurs as
Trademarks, in D IVERSITY IN INTELLECTUAL P ROPERTY : I DENTITIES , I NTERESTS , AND
I NTERSECTIONS , supra note 3, at 105, 110, 111–12 (“Recent psychological evidence
demonstrated the negative effects associated with stereotypical and derogatory
references to Native American people. . . . Besides this psychological harm, an
additional and more symbolic harm occurs when someone’s cultural identity is
literally, and legally, owned by another entity. . . . By trademarking a racial
referent, the message is that the referent is owned, and the owner has the leg al
right to use the racial term; perhaps even the obligation to use it. . . . And by going
into business under harmful words, the owner causes others—fans and consumers—
to endlessly utter them.”).
58. The body of work that explores and delineates the social justice obligations of
intellectual property law has become extensive and continues to develop. See, e.g., Aoki,
supra note 56; Chander & Sunder, supra note 2; Margaret Chon, Intellectual Property and
the Development Divide, 27 CARDOZO L. REV. 2821 (2006); Julie E. Cohen, Creativity and
Culture in Copyright Theory, 40 U.C. DAVIS L. REV. 1151 (2007); Brianna Dahlberg, The
Orphan Works Problem: Preserving Access to the Cultural History of Disadvantaged Groups,
20 S. CAL. REV. L. & SOC. JUST. 275 (2011); Heimes, supra note 2; Neela Kartha, Digital
Sampling and Copyright Law in the Social Context: No More Colorblindness!!, 14 U. MIAMI
ENT. & SPORTS L. REV. 218, 219, 225–26 (1997); Lateef Mtima, Introduction, Symposium on
Intellectual Property and Social Justice, supra note 3; Lateef Mtima & Steven D. Jamar,
Fulfilling the Copyright Social Justice Promise: Digitizing Textual Information, 55 N.Y.L.
SCH. L. REV. 77 (2010).
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inequities, in deference to the social ordering objectives of
intellectual property protection.59
A social justice perspective toward intellectual property law
contemplates
socially equitable access, inclusion,
and
empowerment as essential and intrinsic to intellectual property
social utility. From this perspective, intellectual property social
utility is therefore best served when the precepts of intellectual
property social justice are affirmatively acknowledged and pursued.
With respect to copyright, socially equitable access to
copyrighted works ensures that the widest possible audience of
minds and hearts will find the inspiration to conceive, express,
and disseminate. Moreover, socially just application and
enforcement of copyright law protects the interests and
incentives of all stakeholders, and thereby maximizes the social
efficiency and productive impact and output of the copyright
system.
The advent and proliferation of digital information technology
has made comprehensive access to the global store of copyrighted
works an almost routine aspect of modern life for some. Many
copyright users enjoy revolutionary means and options to use and
appropriately reuse copyrighted content, and to make their own
contributions to the copyright storehouse. Digital information
59.
I have argued elsewhere that in this sense, the pursuit of social justice is an
inherent obligation of intellectual property protection. See Lateef Mtima, From Swords
to Ploughshares: Towards a Unified Theory of Social Justice, in INTELLECTUAL
P ROPERTY ENTREPRENEURSHIP AND SOCIAL JUSTICE 265, 26970 (Lateef Mtima ed.,
2015) (“Intellectual property social justice [is based on a] core premise . . . that the
principles of equitable access, inclusion, and empowerment are intrinsic to intellectual
property protection as a social ordering mechanism. A particular benefit of this
approach is that the instances in which intellectual property protection is permitted to
obstruct critical social welfare imperatives are not addressed as independent IP social
maladies, but rather as symptoms of an IP-systemic malaise, engendered and
perpetuated by a misconstruction of and consequential imbalance in the intellectual
property regime. Intellectual property social justice therefore prioritizes holistic
revitalization of the intellectual property infrastructure over localized responses to its
symptomatic ills. In this sense, intellectual property social justice is perhaps more
aptly described as a theory of IP social restoration, as opposed to IP social reform.”);
see also Margaret Chon, Global Intellectual Property: Governance (Under
Construction), 12 THEORETICAL INQ. L. 349, 358 (2011) (“Even if promoting creation
and innovation is the premier value of intellectual property, the rights-maximizing
agenda pursued by intellectual property-exporting states has resulted not only in
power asymmetry but arguably in policies that are not welfare -maximizing even for
domestic industries within those states. Access for the purpose of fo llow-on
innovation—in other words, for maximizing returns on the public good of knowledge
itself—is a critical policy component within the overall intellectual property regulatory
framework. Moreover, access to knowledge for purposes of maximizing other global
public goods such as basic education, food security and disease control implicates both
fairness and growth.”).
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technology has also democratized the distribution channels for
copyrighted expression.60 If these resources can be better focused
toward the needs of the “IP-marginalized,” universal copyright
access and participation could become an immediate reality.
However, notwithstanding these unprecedented opportunities
through which to provide for socially equitable access to and
dissemination of expressive works, as well as for the socially
progressive use, reuse, and exploitation of copyrighted material,
some prevailing notions about copyright continue to frustrate and
impede the application of digital innovations to achieve these
goals.61
Consequently, many copyright law and policy makers, scholars,
social activists, and rights holders advocate for more socially
responsive amendment, interpretation, and application of copyright
law in the digital information age. In the interest of intellectual
property social utility, law and policy makers can and should
embrace the unique opportunities presented by digital information
technology to advance intellectual property social justice.
[T]he network is illustrative of the way in which the law
must develop in concert with the very means and practices
available within society to ensure the ongoing development
of knowledge and the transfer of that knowledge among and
between citizens. The opportunity for dissemination of
quality materials
for education, research, and
development by engaging novel regulatory systems, rather
than attempting to limit through intellectual property
these transformations in ways to deal with knowledge, is
an opportunity of not only social and cultural significance,
but also economic. To continue to focus on conceptualising
60. Embracing new opportunities for “Digital Entrepreneurship,” many creative
artists from IP-underserved communities have established thriving, Internet-based
business concerns that cater to the needs and interests of their communities, while at the
same time bring works that are often ignored by more established content providers to new
and
larger
audiences.
See,
e.g.,
About,
TERI
WOOD
PUBLISHING,
http://teriwoodspublishing.com/about-teri-woods/ (last visited Nov. 20, 2015); About Us,
LEE & LOW BOOKS, https://www.leeandlow.com/about-us (last visited Nov. 20, 2015); About
Us, SOULECTION, http://soulection.com/about-us/ (last visited Nov. 20, 2015).
61. See, e.g., William M. Landes & Richard A. Posner, An Economic Analysis of
Copyright Law, 18 J. LEGAL STUD. 325, 327–28 (1989). But cf. Daniel J. Gervais, Intellectual
Property and Human Rights: Learning to Live Together, in INTELLECTUAL PROPERTY AND
HUMAN RIGHTS 3, 14 (Paul L.C. Torremans ed., 2008) (“[N]ow that intellectual property has
entered the house of trade law, it may not be possible to [dethrone economic analysis]. Yet,
in the very spirit of law and economics, it may be useful to question the monopoly of
economic analysis on the theoretical discourse surrounding the foundations and evolution
of copyright policy.”); Joseph E. Stiglitz, Economic Foundations of Intellectual Property
Rights, 57 DUKE L.J. 1693, 1701, 1716–19 (2008) (discussing how economic-incentive
approaches that restrict IP access can impede innovation).
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these relations within the simplistic transactions
imagined by intellectual property is to continue limiting
significant economic and cultural potential. 62
Assessed through the lens of intellectual property social
justice, digital information technology can be fully deployed to
meet the challenge stated in the preamble to the WIPO Copyright
Treaty, which acknowledges “the need to introduce new
international rules and clarify the interpretation of certain
existing rules in order to provide adequate solutions to the
questions raised by new economic, social, cultural and
technological developments.”63
In general, the leading copyright social balancing
mechanisms are somewhat agnostic toward intellectual property
social justice. As discussed in the next section, however, some
courts have begun to acknowledge concrete social justice mandates
in the copyright law, by invoking non-copyright law and policy in
their use of copyright social balancing mechanisms to adjudicate
copyright disputes, including controversies that shape the
contours of digital copyright.
62.
GIBSON , supra note 57, at 27; see also GIBERT, supra note 9, at 7–9 (“Actors
in [the creative content] industry group have consistently pushed for stronger
copyright law on the basis that this enables them to extract maximum value from their
investments in audiovisual content. This may have been the case 20 years ago.
However, the proliferation of digital technologies and social networks has dramatically
changed the way people engage with content online. Strong copyright law with few
exceptions may have helped promote the growth of these industries in an industrial
era where most people were never more than passive consumers of content on analogue
devices. In a digital era, access to content and the ability to hyperlink, mix, remix,
copy—and particularly to share—is fundamental to the ways in which we interact with
content. In this digital environment, a copyright system with limited exceptions may
actually diminish the value of audiovisual content to consumers and simultaneously
inhibit their ability to promote it within their social networks. The very notion of
passive consumers of content is being displaced by notions of co-creation, remix culture
and user-generated content in an attention economy where awareness of the product is
an increasingly important source of value.”); Daniel J. Gervais, Making Copyright
Whole: A Principled Approach to Copyright Exceptions and Limitations, 5 U. OTTAWA
L. & T ECH . J. 1, 5–6 (“[C]opyright protection should cease to apply once the goal of
maximizing welfare by ensuring that new works are created without stifling the
potential for new ones . . . . This would seem to mesh rather well also with economic
analyses of copyright that look for a (measurable) optimal protection point at which
creation and dissemination of new works is not negated by deadweight and other
welfare losses.”).
63. See WCT, supra note 14, pmbl. See generally Michael Gollin et al., Intellectual
Property Social Justice in Action: Public Interest Intellectual Property Advisors, in
INTELLECTUAL PROPERTY, ENTREPRENEURSHIP AND SOCIAL JUSTICE 163 (Lateef Mtima ed.,
2015) (discussing international pro bono legal representation to promote IP social justice).
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IV. COPYRIGHT SOCIAL UTILITY IN THE COURTS: PROMOTING
SOCIAL INTEROPERABILITY
The U.S. Court of Appeals for the Second Circuit was
recently confronted with a dispute that involved one of the most
socially ambitious undertakings of the digital information age. In
Authors Guild, Inc. v. HathiTrust,64 a group of universities
agreed to allow Google to make digital scans of the books in their
institutional libraries, so as to render them amenable to digital
research (including “data mining,” the process of using computers
to extract aggregate information from multiple works), accessible
to persons with certified print disabilities, and for purposes of
archival preservation. The owners of the copyrights in many of
the subject works brought copyright infringement litigation,
claiming that these unauthorized uses infringed their exclusive
rights.
In adjudicating the plaintiffs’ claims, the court of appeals
affirmed the finding of the district court that the digitization
project constituted a fair use of the books in the universities’
libraries.
Turning to the first [fair use] factor, we conclude that the
creation of a full-text searchable database is a
quintessentially transformative use . . . . [T]he result of a
word search is different in purpose, character, expression,
meaning, and message from the page (and the book) from
which it is drawn. Indeed, we can discern little or no
resemblance between the original text and the results of the
HDL full-text search.
There is no evidence that the Authors write with the
purpose of enabling text searches of their books.
Consequently, the full-text search function does not
“supersede[ ] the objects [or purposes] of the original
creation” . . . .65
With respect to making digital scans in order to render the
works accessible to the blind, while the court did not consider this
use to be transformative, it nonetheless found it also to be a fair
use, in accord with the district court’s observation of “the
unprecedented ability of print-disabled individuals to have an
64. Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445, 448 (S.D.N.Y. 2012), aff’d,
755 F.3d 87 (2d Cir. 2014).
65. HathiTrust, 755 F.3d at 97 (alterations in original). The court thus concluded that
this was a transformative use and reached the same conclusion as to the purpose of archival
preservation. The court further concluded that the remaining fair use factors also favored
allowing these uses.
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equal opportunity to compete with their sighted peers.”66 The court
based its holding in part upon the Americans with Disabilities Act
and thereby expressly considered federal law and public policy to
enhance opportunities for the physically disabled in its
assessment of the copyright social utilities. “Congress declared
that our ‘[n]ation’s proper goals regarding individuals with
disabilities are to assure equality of opportunity, full participation,
independent living, and economic self-sufficiency for such
individuals.’”67
In explicitly relying upon federal disability law and policy as
a basis for its decision, the court adopted a social-justice oriented
approach to the calibration of digital copyright social utility.
Copyright does not exist in a socio-legal vacuum; it can best
achieve its social function when it is applied so as to enable all
citizens to participate in the rising and advancement of the
societal culture. Put differently, one way to perceive the rationale
of HathiTrust is that it presupposes that at least one of the
purposes of the federal mandate to empower the physically
disabled is to enable these citizens to contribute their fair share to
the nation’s copyright repast.
Moreover, the decision in HathiTrust is by no means a
judicial outlier. With this decision, the Second Circuit joins
other courts that have expressly considered the relationship of
copyright social utility to other socio-legal objectives. In
Deckmyn v. Vandersteen,68 the author of a cartoon illustration
brought suit when the defendant used the work to prepare a
political flyer that contained racially offensive content. In
response, the defendant argued that the use was permitted
under the recognized exception to undertake unauthorized
parodies of copyrighted works. 69
In analyzing plaintiff’s claims, the court not only reviewed
the relevant copyright directives and exceptions, but further
cautioned that the Charter of Fundamental Rights of the
European Union should also be considered in resolving the
issues.
In order to determine whether, in a particular case, the
application of the exception for parody within the meaning
of Article 5(3)(k) of Directive 2001/29 preserves [a] fair
66. HathiTrust, 902 F. Supp. 2d at 464.
67. HathiTrust, 755 F.3d at 102.
68. Case C‑201/13, Deckmyn v. Vandersteen, 2014 EUR-Lex CELEX LEXIS
62013CC0201, paras. 7–10, 11 (Sept. 3, 2014).
69. Directive 2001/29/EC, supra note 16, arts. 2, 3, 5, at 16–17.
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balance, all the circumstances of the case must be taken
into account.
Accordingly, with regard to the dispute before the
national court, it should be noted that, according to
[plaintiffs], since, in the drawing at issue, the characters
who, in the original work, were picking up the coins were
replaced by people wearing veils and people of colour, that
drawing conveys a discriminatory message which has the
effect of associating the protected work with such a
message.
If that is indeed the case, which it is for the national
court to assess, attention should be drawn to the principle
of non-discrimination based on race, colour and ethnic
origin, as was specifically defined in Council Directive
2000/43/EC . . . implementing the principle of equal
treatment between persons irrespective of racial or
ethnic origin and confirmed, inter alia, by Article 21(1) of
the Charter of Fundamental Rights of the European
Union.
In those circumstances, holders of rights provided for in
Articles 2 and 3 of Directive 2001/29 . . . have, in principle, a
legitimate interest in ensuring that the work protected by
copyright is not associated with such a message.70
In Productores de Música de España (Promusicae) v.
Telefónica de España SAU,71 the plaintiff, a nonprofit
organization of music producers and publishers, sought an order
directing the defendant ISP to disclose the identities and
physical addresses of certain of its subscribers, based on the
allegation that said subscribers had used the Kazaa
peer-to-peer file exchange program in order to illegally share
copyrighted music files. The defendant argued, among other
things, that the relief sought by the plaintiff is only available in
criminal proceedings or proceedings that involve the public
safety.
The court began its analysis by observing that the dispute
involved issues that went beyond the question of proper
enforcement of intellectual property rights, and that it was
70. Vandersteen, 2014 EUR-Lex CELEX LEXIS 62013CC0201, paras. 28–31
(internal citation omitted). For a discussion of this issue in the context of the tension
between the First Amendment and the copyright owner’s “right not to speak” see Deidré A.
Keller, “What He Said.” The Transformative Potential of the Use of Copyrighted Content in
Political Campaigns—or—How a Win for Mitt Romney Might Have Been a Victory for Free
Speech, 16 VAND. J. ENT. & TECH. L. 497, 513–17 (2014).
71. Case C-275/06, Productores de Música de Espana (Promusicae) v. Telefónica de
España SAU, 2008 E.C.R. I-271, I-272.
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obligated to consider all of the social utilities implicated in the
dispute.
By its question the national court asks essentially whether
Community law, in particular Directives 2000/31, 2001/29
and 2004/48, read also in the light of Articles 17 and 47 of
the Charter, must be interpreted as requiring Member
States to lay down, in order to ensure effective protection
of copyright, an obligation to communicate personal data
in the context of civil proceedings.
Even if, formally, the national court has limited its
question to the interpretation of Directives 2000/31, 2001/
29 and 2004/48 and the Charter, that circumstance does
not prevent the Court from providing the national court
with all the elements of interpretation of Community law
which may be of use for deciding the case before it,
whether or not that court has referred to them in the
wording of its question.72
Acknowledging that “the fundamental right to property, which
includes intellectual property rights such as copyright and the
fundamental right to effective judicial protection constitute general
principles of Community law,” the court further noted that:
[T]he situation in respect of which the national court puts
that question involves, in addition to those two rights, a
further fundamental right, namely the right that guarantees
protection of personal data and hence of private
life. . . . Article 8 of the European Convention for the
Protection
of
Human
Rights
and
Fundamental
Freedoms . . . guarantees the right to respect for private life,
and Article 8 of the Charter expressly proclaims the right to
protection of personal data.73
The court concluded that while it was within the discretion of
the Member States to reconcile these competing rights, proper
deference must be given to the need to balance the range of social
utilities at issue.
72. Id. at I-337 (internal citation omitted).
73.
Id. at I-344 to -345 (internal citation omitted). Here the court does not restrict
the consideration of non-IP law toward the interpretation or application of a specific
copyright limitation or exception, but rather, concludes that consideration of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
and certain, related EU Directives is necessary to interpreting the relevant EU
Copyright Directives as whole, and in the balancing of the rights and interests arising
thereunder against the obligation to protect private life. Consequently, even upon an
ultimate determination that the balancing of these rights favors the release of
customer identities, said customers could then interpose the applicability of specific
limitations or exceptions, the interpretation of which could in turn trigger a new round
of inquiries into pertinent non-copyright law.
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The present reference for a preliminary ruling thus raises the
question of the need to reconcile the requirements of the
protection of different fundamental rights, namely the right to
respect for private life on the one hand and the rights to
protection of property and to an effective remedy on the other.
The mechanisms allowing those different rights and
interests to be balanced . . . provides for rules which
determine in what circumstances and to what extent the
processing of personal data is lawful and what safeguards
must be provided for . . . .
....
That being so, the Member States must, when transposing
the directives mentioned above, take care to rely on an
interpretation of the directives which allows a fair balance to
be struck between the various fundamental rights protected
by the Community legal order. Further, when implementing
the measures transposing those directives, the authorities
and courts of the Member States must not only interpret
their national law in a manner consistent with those
directives but also make sure that they do not rely on an
interpretation of them which would be in conflict with those
fundamental rights or with the other general principles of
Community law . . . .74
The foregoing decisions are more than merely examples of
copyright disputes that involve or implicate rights and interests in
addition to those arising under intellectual property law; the
74.
Id. at I-345 to -346; see also Ante Wessels, Copyright Law and the
International Covenant on Economic, Social and Cultural Rights, I NFO JUSTICE . ORG,
http://infojustice.org/archives/32035#more -32035 (“The Committee on Economic,
Social and Cultural Rights (CESCR) clarifies in its authoritative interpretation
General Comment No. 17, that it is important not to equate intellectual property
rights with the human right recognized in ICESCR article 15, paragraph 1 (c):
‘Human rights are fundamental as they are inherent to the human person as such,
whereas intellectual property rights are first and foremost means by which States
seek to provide incentives for inventiveness and creativity, encourage the
dissemination of creative and innovative productions, as well as the development of
cultural identities, and preserve the integrity of scientific, literary and artistic
productions for the benefit of society as a whole. . . . Whereas the human right to
benefit from the protection of the moral and material interests resultin g from one’s
scientific, literary and artistic productions safeguards the personal link between
authors and their creations and between peoples, communities, or other groups and
their collective cultural heritage, as well as their basic material interests which are
necessary to enable authors to enjoy an adequate standard of living, intellectual
property regimes primarily protect business and corporate interests and
investments. Moreover, the scope of protection of the moral and material interests
of the author provided for by article 15, paragraph 1 (c), does not necessarily coincide
with what is referred to as intellectual property rights under national legislation or
international agreements.’” (alteration in original)).
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courts in these cases recognize a judicial obligation to consider
non-IP social utilities in the placement of copyright (and
potentially other intellectual property) protection in the total
political economy.75 Whether invoked by an IP rights holder, an IP
user, or sua sponte by a court, intellectual property law must
adhere to a mandate of “social interoperability” with other legal
and social ordering mechanisms. These decisions therefore not
only reposition the parameters of copyright social utility, they also
suggest an analytical framework for realigning copyright and
other forms of IP protection to calibrate for intellectual property
social justice.
V. DERIVING JUDICIAL STANDARDS FOR PROMOTING
INTELLECTUAL PROPERTY SOCIAL JUSTICE
The twentieth century gave witness to unprecedented
advances in pharmacology, bio-farming, digital information
technology, and the proliferation of the Internet. 76 Despite
75.
See, e.g., VINCENT M OSCO , T HE P OLITICAL ECONOMY OF COMMUNICATION 24
(2d ed. 2009) (“One can think about political economy as the study of the social
relations, particularly the power relations, that mutually constitute the production,
distribution, and consumption of resources.”); John C. Reitz, Political Economy as a
Major Architectural Principle of Public Law, 75 T UL. L. REV . 1121, 1125 (2001)
(“Each country’s principle of political economy . . . is a normative statement
reflecting the conception that predominates within that country of what the
appropriate relationship between the individual and the state should be.”). See
generally Case C-145/10, Eva-Maria Painer v. Standard VerlagsGmbH and Others,
2011 E.C.R. I-12533, I-12628 (construing application of the copyright exception for
fair quotation to unauthorized re-publication of a photograph in the public interest);
Chon, supra note 59, at 359 (“The most classic form of intellectual property
governance is national-level public ordering in which, at least in the United States,
industries (non-state actors) vie for negotiated compromises within a legal
framework monopolized by the state. Within this traditionally and territorially
bounded domestic frame, the traditional policy balance weighs the temporary
exclusive rights to induce innovation against access by different non -rights-holders
for different purposes, including user-based innovation. In copyright, for example,
this balance is famously encapsulated by the section 107 fair use exception to the
section 106 rights, which are the basic bundle of exclusive rights in U.S. copyright
law. Fair use is thought to promote goals such as follow-on innovation, as well as to
facilitate education, scholarship and scientific research. All of these access facilitated activities promote more, and arguably better, innovation both directly and
indirectly.”).
76. See, e.g., Ronald P. Rubin, A Brief History of Great Discoveries in Pharmacology:
In Celebration of the Centennial Anniversary of the Founding of the American Society of
Pharmacology and Experimental Therapeutics, 59 PHARMACOLOGICAL REVS. 289 (2007);
BENJAMIN R. LAWLOR, THE AGE OF GLOBALIZATION: IMPACT OF INFORMATION TECHNOLOGY
ON
GLOBAL
BUSINESS
STRATEGIES
1
(2007),
http://digitalcommons.bry
ant.edu/cgi/viewcontent.cgi?article=1000&context=honors_cis; Computers Timeline, NAT’L
ACAD. OF ENG’G, http://greatachievements.org/?id=3975 (last visited Nov. 20, 2015);
Famous Inventions of the 20th Century, HUBPAGES, http://hassam.hubpages.com
/hub/Famous-Inventions-Of-The-20th-Century (last updated Oct. 22, 2011).
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these achievements, widespread famine, pandemic disease,
and stifling illiteracy still persist throughout much of the
world, as the fruits of innovative and creative progress have
yet to reach many of those who need them most. Although by
no means the sole impediment to the pervasive uplift of the
global social welfare, the intellectual property system is often
cited as a critical stumbling block to socially beneficent
development.
If the instrumental mandate of intellectual property law is
truly to increase knowledge for positive purposes, then there
must be fuller consideration of the provision of basic needs
and other global public goods such as food security,
education, and health care. Undernourished, diseased,
dying, undereducated, or extremely impoverished
populations are viewed by many as negative externalities
both qualitatively and quantitatively more serious than the
danger of under-incentivizing authors and inventors. The
latter is the externality to which intellectual property law
devotes its exclusive attention. This disjuncture over
priorities has highlighted an increasingly untenable
intellectual solipsism of the intellectual property
policymaking framework, as
intellectual property
globalization encounters ethical concerns associated with
development.77
77.
Chon, supra note 58, at 2912; see also Irene Calboli & Srividhya Ragavan,
Recognizing Diversity in Intellectual Property, in D IVERSITY IN I NTELLECTUAL
P ROPERTY : IDENTITIES , INTERESTS , AND INTERSECTIONS , supra note 3, at 1, 1–2
(“Despite the rise of diversity to an internationally relevant topic of attention, . . . a
disturbing trend of denial of resources continues to be commonplace with respect to
minorities and certain marginalized groups. In particular, racial, gender, and
religious-based minorities or groups of people from specific countries or regions of
the world continue to have limited access to resources, opportunities, or simply
knowledge and information. . . . [I]ntellectual property rights . . . can serve as an
important tool to achieve some of the goals of promotion and protection of diverse
interests. Forms of intellectual property rights are critical . . . to the creation and
wide dissemination of knowledge and information.”); Mtima, supra note 59, at 265–
66 (“Like all other social ordering mechanisms, intellectual property protection is
but one function within a complex and organic social system designed to promote the
well-being of the societal body as a whole. As intellectual property has moved to the
forefront of daily life, however, scholars, activists, and policy makers have called for
a greater harmonization of intellectual property protection with other important
social mechanisms and objectives. Toward this end, leading ‘IP social reformists’
have argued that prevailing intellectual property norms can and should be socially
rehabilitated by resorting to appropriate extrinsic disciplines, such as human rights
jurisprudence and critical legal theory, so as to infuse the intellectual property
regime with a progressive social consciousness.”). See generally AMARTYA S EN,
D EVELOPMENT AS F REEDOM (1999).
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Legal scholars such as Keith Aoki,78 Margaret Chon,79 Daniel
Gervais,80 Madahavi Sunder,81 and others have advocated for the
importation of human rights theory and discourse in the
divination of intellectual property social utility to correct this
social imbalance. They have cogently argued that human needs
must be assessed in conjunction with contemporary human
78. See Keith Aoki, Neocolonialism, Anticommons Property, and Biopiracy in the
(Not-So-Brave) New World Order of International Intellectual Property Protection, 6 IND. J.
GLOBAL LEG. STUD. 11, 18–20 (1998).
79. See Chon, supra note 58, at 2885–86, 2905–06 (“In the current rule-generating
and rule-interpreting environment of intellectual property globalization, the presumption
has been that intellectual property is good because it promotes economic growth. But as the
area of development economics shows, economic growth is not synonymous with economic
development. Intellectual property can no longer afford to be insular, as if it does not affect
or is not affected by the provision of other global public goods. Explicit connections must be
made between intellectual property and other global public goods addressing basic
development needs, including food, education as well as the already highly publicized
health care sector. Intellectual property, after all, cannot ‘take root’ absent a basic national
capacity, which can only be developed with a population that has its essential needs
met. . . . It bears keeping in mind that much of the world’s population lacks access to
essential nutrients, basic education, and basic health care. Basic needs have been
underemphasized in much of the debate about what to do about intellectual property
globalization. . . . Some international human rights treaties directly address intellectual
property, and this increasingly is an area that may be a source of emerging equality norms.
While human rights treaties and the soft law mechanisms that have been deployed to
challenge intellectual property norms are ancillary to WTO and WIPO treaties, they can be
viewed as additional evidence of substantive equality norms that should be incorporated
into the intellectual property calculus through the language of development.”).
80. See Gervais, supra note 62, at 3, 14 (“Intellectual property and human rights must
learn to live together. Traditionally, there have been . . . two dominant views of this
‘cohabitation,’ namely a conflict view, which emphasizes the negative impacts of intellectual
property on rights such as freedom of expression or the right to health and security, and a
compatibility model, which emphasizes that both sets of rights strive towards the same
fundamental equilibrium. . . . [T]he dualist view [is] that both are right, though there is,
and should be, much more truth to the second approach in the coming years. . . . [H]uman
rights principles and analogies are able to provide normative boundaries to the age-old
quest for intrinsic equilibrium in copyright policy: the protection of interests resulting from
expressed creativity, on the one hand, and the right to enjoy and share the arts and
scientific advancement.”).
81. See MADAHAVI SUNDER, FROM GOODS TO A GOOD LIFE: INTELLECTUAL PROPERTY AND
GLOBAL JUSTICE 1 (2012) (“[I]ntellectual property laws have profound effects on human
capabilities . . . . Intellectual property incentivizes pharmaceutical companies to innovate drugs
that sell—hence we are flooded with cures for erectile dysfunction and baldness, but still have
no cure for the diseases that afflict millions of the poor, from malaria to tuberculosis, because
these people are too poor to save their lives.”); Stiglitz, supra note 61, at 1718 (“One of the
problems of being poor is that you do not have any money and therefore cannot spend a lot of
money on drugs, even though if you do not buy the drugs you may die. There is clearly a strong
potential demand for these drugs from poor countries, but the poor do not have the income to
convert this potential demand into a real demand. The drug companies, of course, realize this;
some of them have been very upfront about it. They admit that the patent system does not
provide incentives for developing cures or vaccines for the diseases that afflict the poor, especially
the poor in developing countries.”); see also LAURENCE R. HELFER & GRAEME W. AUSTIN, HUMAN
RIGHTS AND INTELLECTUAL PROPERTY 32–33 (2011).
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accomplishment in the calibration of human rights. Put
differently, once the means to address critical social deficiencies
become manifest, the recognition of fundamental human rights
requires that such advances be deployed as necessary to alleviate
human suffering, degradation, and social inhibition.82
Moreover, in the digital information age, the need for a more
socially balanced intellectual property system is self-evident, as
intellectual property use and interaction have become unavoidable
and often even essential aspects of everyday life. “For centuries,
no one much thought about copyright in daily life. Now, we don’t
have a choice.”83 Indeed, the mandates of intellectual property
protection can affect almost every dimension of human
self-actualization and fulfillment.
A cornerstone of the human rights movement is access to
information. Civil and political rights—like freedom of
expression, free exercise of religion, meaningful participation in
government—require an educated citizenry with access to
information. Economic, social, and cultural rights—such as the
right to an education, to health care, to economic development,
to a clean environment, and more generally to participate in the
social and cultural life of a nation—also depend upon access to
information in a general way, for education, as well as in a more
particular way for each of the domains listed; i.e., information
about health, disease, medicines, and treatments; information
about business methods, the economy, and know-how including
intellectual property; information about the environmental
consequences of various actions; and information about, and in
some sense even constituting, the arts and culture. Thus the
right to access information is not only an important right in and
82. See Ruth Okediji, The Limits of Development Strategies at the Intersection of
Intellectual Property and Human Rights, in INTELLECTUAL PROPERTY, TRADE AND
DEVELOPMENT: STRATEGIES TO OPTIMIZE ECONOMIC DEVELOPMENT IN A TRIPS-PLUS ERA
355, 355–79 (Daniel J. Gervais ed., 2007); Mary W. S. Wong, Toward an Alternative
Normative Framework for Copyright: From Private Property to Human Rights, 26 CARDOZO
ARTS & ENT. L.J. 775, 830 (2009) (“Many . . . scholars share the belief that the current
international IP regime does not adequately accommodate concerns of distributive social
justice, and . . . does not easily allow for non-economic developmental considerations that
are emphasized by human rights jurisprudence and norms, and that are socially beneficial
objectives that IP regimes ought to incorporate. Alongside specific proposals for addressing
these inadequacies, the[se] scholars . . . support (either explicitly or implicitly) a broader
approach that incorporates social and cultural theory, and that more clearly maps to less
utilitarian objectives such as self-actualization, freedom of choice, and human
development.”). See generally GIBSON, supra note 57.
83. AUFDERHEIDE & JASZI, supra note 25, at 7; see also Gervais, supra note 62, at 11
(“For the first time in copyright’s 300-year-history, individual end-users, who until recently
have rarely had encounters with copyright law (no one need sign a license when buying a
copy of a book at a bookstore or a CD at a record store), suddenly have to learn rules about
what they can or cannot do legally with pictures, music, videos, images, etc.”).
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of itself, but it is important for how it supports other human
rights.84
As discussed in Part IV, courts adjudicating intellectual
property disputes are giving greater consideration to how intellectual
property mechanisms and dictates affect and interconnect with other
important social objectives, including universal conventions
regarding human rights. As courts become increasingly sanguine in
their consideration of non-IP law and policy objectives to construe
intellectual property social utility, particularly in the context of
intellectual property social balancing mechanisms, they develop a
body of judicial precedent from which standards for achieving
intellectual property social justice can be derived. Collectively, these
decisions suggest a framework for evaluating the unauthorized use
of intellectual property in the cause of social justice.
A. “Three Step” Framework for Assessing IP Social Justice
1. Step One: Alligate IP Social Justice Goals to Express Law
or Governmental Policy. In many cases where courts balance
intellectual property rights against other social utilities, the said
non-IP social objectives are embodied within a specific law,
convention, or treaty.85 In such cases, these countervailing
considerations do not represent the social priorities of a few
individuals or of a special interest group, but rather reflect the
collective values of society as a whole. As such, courts have both a
legal and moral obligation to respect these choices and weigh them
against any intellectual property rights or interests also at issue.86
Accordingly, where an unauthorized use of intellectual
property is undertaken in the cause of social justice, courts can
84.
Jamar, supra note 54, at 289–90; see also Calboli & Ragavan, supra note 77,
at 2 (“[I]ntellectual property norms and the current culture revolving around these
norms impact questions related to equality, access, personal freedoms, privacy, wealth
distribution, and allocation and exercise of social and economic power.”). See generally
Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) 1, 13.
85. See, e.g., POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2230 (2014)
(discussing the intersection of trademark law and FDA regulations); Lasercomb Am. Inc. v.
Reynolds, 911 F.2d 970, 977 (4th Cir. 1990) (discussing the intersection of the patent and
antitrust laws).
86. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2617 (2015) (“‘The doctrine
that . . . due process authorizes courts to hold laws unconstitutional when they believe the
legislature has acted unwisely,’ we later explained, ‘has long since been discarded. We have
returned to the original constitutional proposition that courts do not substitute their social
and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.’”
(quoting Ferguson v. Skrupa, 372 U.S. 726, 730 (1963))); Missouri v. Jenkins, 515 U.S. 70,
133 (1995) (“As Alexander Hamilton explained [in the Federalist No. 78] the limited
authority of the federal courts: ‘The courts must declare the sense of the law; and if they
should be disposed to exercise WILL instead of JUDGMENT, the consequence would
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begin the “IP social justice assessment” by determining whether
allowing the use will further the social objectives of a specific law
or express governmental policy.87 While any use of intellectual
property to benefit social justice is commendable, not every such
use is supported by or implicates specific law or governmental
mandates. Consequently, where intellectual property social justice
conduct is anchored by an express law or governmental policy, the
court is assured that permitting the use will accommodate social
priorities sanctioned by society as a whole. Moreover, it promotes
the social interoperability of intellectual property protection
within the total political economy.88
equally be the substitution of their pleasure to that of the legislative body.’”); see also
Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) (“[W]e do not sit as a
super-legislature to weigh the wisdom of legislation . . . .”).
87. As discussed above, intellectual property protection mechanisms can affect a wide
range of individual rights and interests. See Gervais, supra note 62, at 4 (“[C]opyright is
increasingly sparring with rights outside of its own sphere, such as the right to privacy,
human rights principles of free expression and cultural diversity and cultural development,
the right to information, the right to education, and the nascent right to development, each
of which implies striking a balance in intellectual property protection.”). Whereas
legislative bodies can articulate directly collective societal values and choices through
legislation, they can also accomplish this indirectly, such as through delegation of rulemaking and other authority to government agencies, which can in turn promulgate express
regulations or policies designed to achieve the legislative intent. See, e.g., Overview and
Mission Statement, U.S. DEP’T OF EDUC., http://ed.gov/about/landing.jhtml?src=ft (last
visited
Nov.
20,
2015);
Our
Mission,
U.S.
DEP’T
OF
LABOR,
http://dol.gov/opa/aboutdol/mission.htm (last visited Nov. 20, 2015) (setting forth the
mission statements and policies of federal education and labor agencies). In appropriate
cases, reference to express governmental policy in support of social justice use of intellectual
property can therefore serve the same legitimizing function as reference to specific laws.
See, e.g., Yates v. Hendon, 541 U.S. 1, 18 (2004) (observing that federal agency
interpretation of law that the agency implements “reflects a ‘body of experience and
informed judgment to which courts and litigants may properly resort for guidance’” (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))); id. at 24 (Scalia, J., concurring)
(“[A]uthoritative interpretations of law by the implementing agency, if reasonable, are
entitled to respect.”). See generally Susy Frankel, Interpreting International Intellectual
Property Agreements and Supporting Diversity Goals, in DIVERSITY IN INTELLECTUAL
PROPERTY: IDENTITIES, INTERESTS, AND INTERSECTIONS, supra note 3, at 17, 24
(“Intellectual property rules do not exist in a vacuum. Effects of the rules come about
through the diverse actors in the intellectual property system. These actors include creators
and owners of intellectual property . . . domestic legal regimes and administrative bodies
and international institutions.”). An operative consideration in such invocation of
governmental policy will be the degree of specificity in the articulation of public objectives
and sanctioned methods for achieving these goals.
88. See AUFDERHEIDE & JASZI, supra note 25, at 151 (“Articulate constituencies need
to be developed for limitations and exceptions—not because these serve special interests
but because the public interest is at stake here.”). For a similar argument that where a use
essentially falls within but does not technically satisfy a category of exception specified in
the Copyright Act, that fact should have a favorably “powerful gravitational pull” on the
First Fair use factor, see Jonathan Band, The Impact of Substantial Compliance with
Copyright Exceptions on Fair Use, 59 J. COPYRIGHT SOC’Y U.S.A. 453 (2012).
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2. Step Two: Identify a Nexus Between the Relevant IP and
Non-IP Social Utilities. While IP social justice advocates add
ballast to their arguments by connecting them to specific laws or
governmental policies, it may be that all but the most socially
abstract claims will satisfy this requirement. This is because
many, if not most, social justice needs or uses can be construed to
implicate at least some express law or governmental policy.
Moreover, the mere identification of such peremptory but
countervailing social utilities provides little guidance to a court as
to how these conflicting social goals should be reconciled.
Consequently, additional evaluative steps are needed to ensure
that intellectual property social utility is not arbitrarily
subordinated to other social goals and policies.
As discussed above, courts seeking to balance IP and non-IP
social utilities often achieve reconciliation by identifying an
overlapping or commonality of purpose between intellectual
property protection and the competing law or policy. For example
in HathiTrust, the court showed how copyright and the ADA are
each respectively concerned with promoting widespread
participation in the production and use of expressive works. By
identifying such commonalities, courts mitigate and sometimes
even dissolve an apparent conflict between the pertinent social
objectives: they demonstrate how deferring to the subject non-IP
social dictates and allowing the unauthorized use will in some way
further or benefit the overarching goals of intellectual property
protection.
Accordingly, as the second step in evaluating an IP social
justice use, courts should determine whether there is some nexus
between the referenced non-IP social objectives and the social
objectives that underlie intellectual property protection.
Illustrative examples of such a nexus might include improving
opportunities to contribute to intellectual property production, the
intersection between intellectual property rights and freedom of
expression, or balancing tensions between the preservation of
intellectual property interests and protecting anonymous speech.
By identifying such a nexus, courts give proper deference to the
goals of intellectual property protection, and also ensure that the
prerequisite reference to an express law or governmental policy is
more than a chimeric assessment threshold.
3. Step Three: Determine Whether Allowing the IP Social
Justice Use Would be Wholly Antagonistic to IP Social Utility.
Finally, courts assessing unauthorized IP social justice use should
consider whether allowing the use would directly contravene or be
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antagonistic to core intellectual property protection imperatives. For
example, an unauthorized use of a copyrighted work that satisfies
the first two steps but involves the wholesale reproduction and wide
dissemination of a newly published work would likely fail this
requirement.
This final evaluative step can not only provide additional succor
to rights holder economic expectations, it can also serve to broaden
the assessment of resulting harms and benefits to the rights holder.
Creators want to make a living from their work, but they also
want their work to be read, listened to, or performed. Following
this logic, creative artists want to be recognized in the first
place. If a literary critic discusses a novel, the author will not
be bothered to know whether the critic bought the book in a
shop or picked it up in a public library. Especially with respect
to real fans who do not have the means to buy an expensive
copy, artistic creators somehow lose their artistic soul when
they blame illegal downloading.89
In applying this step, courts should thus consider the effect
upon all of the rights holder’s incentives and benefits—non-economic
as well as economic—in determining whether an unauthorized use
should be deemed wholly antagonistic to intellectual property
protection. Where an unauthorized use satisfies the foregoing first
two steps and causes only minimal or trivial commercial harm while
providing substantial non-economic benefits to the rights holder, the
court should permit the use to proceed.90
B. Applying the Social Justice Assessment Framework:
Copyright Social Balancing
The IP social justice assessment framework should serve to
supplement and even refine various existing IP social balancing
mechanisms. For example, the framework complements each of
89. Geert Demuijnck, Illegal Downloading, Free Riding and Justice, in NEW
FRONTIERS IN THE PHILOSOPHY OF INTELLECTUAL PROPERTY, supra note 54, at 261, 277.
90. See generally GIBSON, supra note 57 (discussing esteem and attribution as creator
incentives and objectives); Margaret Jane Radin, Property and Personhood, 34 STAN. L.
REV. 957 (1982); Stiglitz, supra note 61, at 1695–96 (“Like most academics, I have
ambivalent feelings about intellectual property . . . . At [a conference in Taiwan], I knew
that intellectual property rights were not always strictly enforced there. During a break in
the conference, I had a little time to go to a bookstore. As I went to the store, I had a debate
in my mind about what I hoped to see when I arrived. On the one hand, there was the
possibility that they had stolen my intellectual property, that they had pirated one or more
of my books. . . . The other possibility was that they had not pirated one of my books and
stolen my intellectual property, that they had ignored me. . . . I came to the conclusion that
being ignored is far worse than having one’s property stolen, and I resolved that I would
actually be much happier if they had stolen my intellectual property than if they had
ignored me. When I got to the bookstore, they had in fact stolen it, and I was relieved.”).
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the leading copyright social balancing mechanisms. With respect
to the fair use doctrine, the first two assessment steps would
identify a legal or governmental basis for social justice-oriented
conduct and a nexus to copyright social policy, which assessments
in effect provide standards for determining whether the specific
social justice purpose satisfies the first fair use factor. The third
assessment step actually broadens and refines the analysis that is
the subject of the fourth fair use factor.91
The IP social justice framework is also compatible with fair
dealing. The framework can be of use in construing the breadth of
a specific fair dealing exception, i.e., would a proper construction
of a copyright exception require the exclusion of activities
encouraged by law and that also have a nexus to copyright?
Alternatively, where a social justice use falls within a recognized
exception, the framework could be used to assess whether
permitting the use would be fair under the particular
circumstances.
Finally, the IP social justice framework could also be used to
supplement copyright limitation and exception systems. As with
fair dealing, the framework could be used to construe the purpose
or parameters of a specific limitation or exception. Perhaps most
important, courts following the framework would build a body of
precedent for interpreting and applying limitations and exceptions
to social justice needs. Such precedent would not only aid
subsequent courts in addressing questions of IP social justice, but
the analyses in these opinions could ultimately provide the basis
for the adoption of an express “social justice exception” or
limitation in the national copyright law.92
91. I am indebted to Professor Margaret Chon for the observation that the social
justice assessment steps could also be considered additional or alternative fair use factors
under section 107 of the Copyright Act. See, e.g., Richard Dannay, Factorless Fair Use? Was
Melville Nimmer Right?, 60 J. COPYRIGHT SOC’Y USA 127, 133 (2013) (“As the Supreme
Court described . . . the fair use doctrine not only permits—it requires—courts to avoid
rigid application of the statute when, on occasion, it would stifle the very creativity the law
is designed to foster. . . . This scheme is embedded in the statute itself, with its several
preamble purposes and four factors that are non-exclusive, illustrative, and that begin the
analysis the analysis but do not necessarily exhaust it.”).
92. See, e.g., Wessels, supra note 74 (“In emerging economies, there are serious access
to knowledge and culture deficiencies. . . . [R]elative to local incomes in Brazil, Russia, or
South Africa, the price of a CD, DVD, or copy of Microsoft Office is five to ten times higher
than in the United States or Europe. There is no distribution of legal CDs and DVDs outside
the capitals. Up to 90 percent of the people in emerging economies can only turn to illegal
media copies. Such problems also exist in eastern European emerging
economies. . . . ’Torrent sites such as Zamunda and Arena are the most popular websites in
Bulgaria. The reason for that is not just the enormous amount of music, films, software,
and books that they make available to anybody for free. . . . These torrent sites are
technically in violation of all sorts of copyright laws but what they offer has no alternative
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C. IP Social Justice Assessment and TRIPS
In the latter decades of the twentieth century, various
commercial IP industries and interests urged that the question of
international comity for intellectual property rights should be
resolved as a matter of international trade law.93 These efforts
reached their apogee with the adoption of the TRIPS Agreement.94
Today, more than 150 nations are signatories to TRIPS,95 and
while there remain legal scholars and commentators who question
the compatibility of international trade policy with intellectual
for the people in Bulgaria for the time being given the country’s social and economic
development.’ . . . In Bulgaria, digital technology helps to solve deficiencies in access to
knowledge and culture, but EU law harms this access. In Bulgaria, and other countries in
similar circumstances, EU law nullifies or impairs the rights to access to knowledge and
culture for many, this is neither compatible with the second condition of article 4 ICESCR,
‘compatible with the nature of these rights’, nor with the third, ‘promote the general welfare
in a democratic society’. The EU needs an underserved market exception.” (internal citation
omitted)); see also KEI Intervention on Education Exceptions in SCCR 30, KNOWLEDGE
ECOLOGY INT’L (July 3, 2015), http://keionline.org/node/2270 (advocating for an exception
to permit access to educational materials in developing nations). Indeed, courts in some
copyright limitation and exception systems have already interpreted the law to recognize a
general principle to curtail copyright when necessary to the public interest. See, e.g., Hyde
Park Residence Ltd. v. David Yelland, [1999] EWHC (Pat) 247 [39], (Eng.) (“[T]here is a
public interest defence [to copyright] available in principle. That is not to say it is of wide
scope, even though it cannot be more precisely defined than ‘just cause or excuse’. It is
unlikely that the defence will succeed unless the court can be reasonably certain that no
right-thinking member of society would quarrel with the result. It is difficult to imagine the
defence arising except in the context of the communication of what is essentially
information—information clothed in copyright. Before it can arise it must be shown that
there is a genuine public interest in that information being disclosed.”).
93. See, e.g., Long, supra note 3, at 59 (“The major actors in earlier stages of
multilateralism could be divided roughly into three groups: the creators of intellectual
property, the distributors of intellectual-property-based goods and services, and the
governments that largely represented the interests of the members of the first two
groups.”).
94. See Gervais, supra note 62, at 6–7 (“The progressive alignment of trade and
intellectual property policy started in the United States in the 1980s through successive
amendments to section 301 of the Trade Act, which allowed the U.S. Administration to
impose trade-based sanctions on countries which, in the view of the United States Trade
Representative, did not adequately protect intellectual property rights of United States
citizens and companies. . . . There ensued a well-documented push by the United States
government, supported by the European Commission and the Japanese government, to link
intellectual property and trade rules in the World Trade Organization (WTO) as part of the
Uruguay Round of Multilateral Trade Negotiations, which ended in Marrakesh in April
1994 with the signing of the Agreement Establishing the WTO, Annex 1C of which is the
TRIPS Agreement. While critics opined that intellectual property was not proper subject
matter for the WTO, enter the house of trade it did, wholesale.”). See generally DANIEL
GERVAIS, THE TRIPS AGREEMENT: DRAFTING HISTORY AND ANALYSIS (4th ed. 2012)
(examining the history and analyzing specific sections of TRIPS).
95. See IP-related Multilateral Treaties, WORLD INTELL. PROP. ORG.,
http://wipo.int/wipolex/en/other_treaties/parties.jsp?treaty_id=231&group_id=22
(last
visited Nov. 20, 2015) (listing signatory countries of TRIPS).
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property social utility,96 for better or worse, TRIPS is now the “IP
Magna Carta” for the international community.97 Accordingly,
while it is essential that any mechanism intended to promote IP
social justice prove compatible with national intellectual property
social balancing mechanisms, it is equally important that any such
mechanism also be consistent with the pertinent dictates of
TRIPS.
In accordance with TRIPS, its signatories are free to adopt
limitations and exceptions to intellectual property rights, provided
that such limitations and exceptions satisfy the TRIPS Three
Steps test. The Three Steps test requires that limitations or
exceptions (i) apply only in special cases, (ii) do not unreasonably
prejudice the legitimate interests of the rights holder, and (iii) do
not conflict with the normal commercial exploitation of the
intellectual property work.98
On its face, the proposed IP social justice assessment
framework is at least consistent with the TRIPS Three Steps test.
At the initial stage, the framework is directed towards identifying
a particular category of “special cases”—cases that involve the
mandatory balancing of intellectual property rights against
express, albeit differing and even conflicting, public directives.
96. See, e.g., Chon, supra note 59, at 361 (“Although global intellectual property has
always been an exotic flavor of international economic law, the brute fact is that the WTO
is a trade treaty rather than a specialized treaty dealing with ‘industrial property’ or
‘literary and artistic works’. Thus we now have the unfamiliar phenomenon of trade
economists weighing in on the intellectual property relatedness of TRIPS and finding it
lacking by economic welfare measures.”); Ho, supra note 56, at 469 (“The TRIPS agreement
can be seen as the ultimate act of imperialism to the extent that it forces countries opposed
to patents to nonetheless tolerate and grant patents within their own countries. Not only
do many indigenous communities oppose patent rights, but also the scope of patentable
subject matter under TRIPS. In particular, many communities object to patent rights over
any type of life forms, regardless of the amount of human intervention involved. This
objection reflects their philosophy that life is sacred. However, their philosophies are
inherently irreconcilable with the mandatory language under TRIPS that plant and animal
varieties must be granted protection.”); Robert J. Gutowski, The Marriage of Intellectual
Property and International Trade in the TRIPS Agreement: Strange Bedfellows or a Match
Made in Heaven?, 47 BUFF. L. REV. 713, 744–45, 747–51 (1999) (“While Western,
industrialized countries employ the value-laden language of ‘piracy’ and ‘counterfeiting’ to
describe lax protection of IP in the developing world, lesser developed and newly
industrialized countries find a moral foundation for weak IP protection. . . . From the
developing countries’ point of view, weak protection of IP can serve to protect life itself by
ensuring a supply of essential goods, particularly in the fields of education and medicine,
for both sustenance and development. A survey of the literature about what is variably
termed the ‘North–South debate’ reveals two distinct lexicons—one of politics and
economics and another of sociology and cultural anthropology, with developed nations
employing the former and developing countries the latter.”).
97. See, e.g., Frankel, supra note 87, at 21–24; Gutowski, supra note 96, at 714, 753–
57.
98. See TRIPS, supra note 8, art. 13.
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Next, by confirming the presence of a social utility nexus between
intellectual property protection and the referenced non-IP law or
policy, the framework arguably precludes unauthorized use that
would unreasonably prejudice the legitimate interests of rights
holders. Under the framework, rights holders’ interests are
curtailed only to the extent necessary to reconcile competing public
mandates regarding common or overlapping subject matter. Thus,
the framework would allow only reasonable restrictions on
legitimate intellectual property interests, or put differently,
preclude only the illegitimate prioritization or expansion of IP
interests over other domains. Finally, the impact of an
unauthorized social justice use upon the normal commercial
exploitation of intellectual property would be a consideration in
determining whether the use is antagonistic to intellectual
property social utility. The fact that a court could also consider any
benefits to the rights holder merely results in a more
comprehensive commercial impact analysis.99
As with national intellectual property limitation and
exception mechanisms, courts utilizing the IP social justice
framework could build a body of precedent for applying the Three
Steps test in cases that involve social justice needs and interests.
As Professor Daniel Gervais observes:
Indeed, at the level of national laws, the three-step test could
be refined by enumerating certain specific cases, or by
providing additional guidance on the interpretation of the
three steps. It remains a flexible test which could, however,
be used by courts in cases where no such specific exception
exists, if allowed to do so under domestic law.100
The framework could thus aid courts in demonstrating how
social justice applications of IP social balancing mechanisms are
consonant with TRIPS, which would further support the adoption
of discreet IP social justice limitations and exceptions in to
national intellectual property regimes.101
99. See, e.g., Gervais, supra note 8, at 14–19. For a comparison with an in-depth
analysis of the explicit and implicit obligations arising under each of the TRIPS Three
Steps, see Gervais, supra note 62, at 8–10.
100. Gervais, supra note 62, at 11; see also Frankel, supra note 87, at 19 (discussing
the impacts of dispute resolution on treaty interpretation, and noting how such “impacts
are not necessarily only confined to the disputes, but also affect those who rely on the
outcome of disputes to guide their national law making”).
101. See Gervais, supra note 62, at 30 (“It would thus be theoretically possible to
consider a provision allowing courts not to enforce copyright when a countervailing public
interest justification supports this application.”); see also AUFDERHEIDE & JASZI, supra note
25, at 149–50 (“[T]here is increasing interest in expanding the utility of limitations and
exceptions . . . . Copyright policy internationally, just as in the United States, is grounded
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V. CONCLUSION
Along with the well-recognized and widely accepted benefits
to copyright social utility, digital information technology has also
opened new vistas through which to perceive and promote
copyright and other intellectual property social justice. The
proposal herein is one means by which courts can embrace these
opportunities and balance social justice interests against digital
copyright and other intellectual property rights. The proposed IP
social justice assessment framework is not intended to supplant
other intellectual property social balancing mechanisms, but
rather to supplement and adapt such mechanisms as necessary to
meet the challenges of the Information Age. In achieving a socially
just equipoise, copyright and other forms of intellectual property
protection mature into global systems of development and
exchange in which all can participate and share mutual respect.
in the public interest . . . . Monopolies given to creators are necessarily tempered with other
measures—limitations and exceptions—that limit that monopoly. . . . Wherever copyright
reform is under discussion, expanding exemptions . . . is one of the important issues
debated.”). Indeed, at least one important study suggests that greater flexibility in
copyright limitations and exceptions propitiously impacts copyright economic rates of
growth and overall outputs, including decentralized/user-generated creative activity, and
also spurs growth in the information technology, education, and other major socio-economic
sectors. See GIBERT, supra note 9, at 3–4, 6.