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Copyright Social Utility and Social Justice Interdependence: a Paradigm for Intellectual Property Empowerment and Digital Entrepreneurship Volume 112 Issue 1 Article 7 September 2009 Copyright Social Utility and Social Justice Interdependence: A Paradigm for Intellectual Property Empowerment and Digital Entrepreneurship Lateef Mtima Howard University School of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation Lateef Mtima, Copyright Social Utility and Social Justice Interdependence: A Paradigm for Intellectual Property Empowerment and Digital Entrepreneurship, 112 W. Va. L. Rev. (2009). Available at: https://researchrepository.wvu.edu/wvlr/vol112/iss1/7 This Digital Entrepreneurship: The Incentives and Legal Risks is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Mtima: Copyright Social Utility and Social Justice Interdependence: A Pa COPYRIGHT SOCIAL UTILITY AND SOCIAL JUSTICE INTERDEPENDENCE: A PARADIGM FOR INTELLECTUAL PROPERTY EMPOWERMENT AND DIGITAL ENTREPRENEURSHIP Lateef Mtima* A B STRA CT ...................................................................................................... 98 IN TROD UCTION ............................................................................................... 99 A nalytical Schem a ............................................................................... 100 PART I. ACHIEVING THE SOCIAL UTILITY MANDATE OF THE COPYRIGHT L A W ..................................................................................................... 10 2 A. CopyrightProtection as a Social Engineering Tool .............. 102 B. Preserving Copyright Social Utility in the Courts: The Fair Use D octrine .................................................................................. 10 5 C. Fair Use and Unauthorized Digital Use of Copyrighted M ateria l .................................................................................. 109 D. Congress and Copyright Social Utility: The Copyright Comp ulsory L icense ............................................................... 113 E. Copyright Social Utility Legislation: The Digital Millennium CopyrightA ct ......................................................................... 116 PART II. ACHIEVING INTELLECTUAL PROPERTY EMPOWERMENT AND SOCIAL JUSTICE THROUGH THE COPYRIGHT LAW: CONSTITUTIONAL MANDATES FOR COPYRIGHT SOCIAL JUSTICE .................................... 119 A. Uncovering Social Justice Imperatives in the Copyright Social Utility M andate....................................................................... 119 B. Copyright Social Utility/Social Justice Interdependence ....... 122 C. Copyright Social Utility/Social Justice Interdependence in the Digital Age: the Digital Performance Right in Sound R ecordings A ct ....................................................................... 129 ( 2009, Lateef Mtima. Distinguished Libra Scholar and Visiting Professor, University of Maine School of Law; Professor of Law and Founder/Director of the Institute of Intellectual Prop- erty and Social Justice, Howard University School of Law. I would like to thank Professor Mi- chael Risch, the West Virginia Law Review, and The West Virginia Entrepreneurship, Innovation and Law Program for the opportunity to participate in the Digital Entrepreneurship: The Incen- tives and Legal Risks Symposium; and Professor Steven Jamar, Professor Jennifer Wriggins, and the University of Maine Law Faculty Scholarship Colloquium for their helpful comments on various drafts of this article. I would also like to thank Izukanne Emeagwali. HUSL '10 for her excellent research assistance. Finally. I would like to acknowledge Dean Kurt L. Schmoke for research support. Any errors are my own. Disseminated by The Research Repository @ WVU, 2009 1 West Virginia Law Review, Vol. 112, Iss. 1 [2009], Art. 7 WEST VIRGINIA LAW REVIEW [Vol. 112 PART IIi. DIGITAL ENTREPRENEURSHIP: A COPYRIGHT SOCIAL UTILITY/SOCIAL JUSTICE INTERDEPENDENCE STRATEGY FOR THE DIGITAL INFORM ATION A GE ............................................................... 136 A. Copyright Social Utility/Social Justice Interdependence and D igital Information Technology ............................................. 136 B. Digital Entrepreneurship: An Affirmative Copyright Social Utility/SocialJustice Interdependence Strategy ..................... 141 C. Digital Entrepreneurship Legislation: A Flexible Digital Compulsory License Schem e .................................................. 147 C O N C LU SIO N ..................................................................................................... 15 1 ABSTRACT While advances in digital information technology offer extraordinary possibilities for the exploration and exploitation of literary and artistic expres- sion, these advances also present unprecedented opportunities for intellectual property ("IP") empowerment and the achievement of singular milestones in copyright social justice. The ostensible conflict between copyright digital social utility and digital commoditization has engendered a reemphasis upon the social engineering obligations of the copyright law, and a search for copyright policies which will harmonize these corrivallous objectives. Doctrinal constructions of the copyright law which acknowledge the law's congenital social justice charac- teristics, however, can achieve this equilibrium. The revisualization of the copyright law as an engine for the socio- economic advancement of marginalized communities, complimented by a con- comitant respect for traditional copyright property interests, will enhance the application of digital information technology to the cause of intellectual proper- ty development, exploitation, and social empowerment. Such recognition of copyright social utility/social justice interdependence, and the development of affirmative mechanisms designed to promote more equitable access to the copy- right infrastructure and to correct historical problems of copyright social injus- tice, will ultimately produce a more diverse pool of stakeholders in the copy- right property rights sub-regime. Accordingly, the promulgation of "Digital En- trepreneurship" affirmative initiatives to promote grassroots copyright participa- tion and empowerment will not only further the social justice agenda of the law, but will also appropriately preserve its author incentive function and related copyright social utility mechanisms in the digital information age. Responsibly incorporated into the copyright regime, the copyright social utility potential of digital information technology can be fulfilled. A socially balanced approach to digital age copyright reveals intellectual property empo- werment policy initiatives; it further suggests the construction of a fluid com- pulsory license scheme, which should include a flexible royalty scale assessing non-commercial, quasi-commercial, and commercial payment levies, buttressed by an express unconscionablity mechanism, to symbiotically assure a progres- sive response to digital copyright conflicts. "Digital Entrepreneurship" and other https://researchrepository.wvu.edu/wvlr/vol112/iss1/7 2 Mtima: Copyright Social Utility and Social Justice Interdependence: A Pa 2009] COPYRIGHT SOCIAL UTILITY AND SOCIAL JUSTICE INTERDEPENDENCE 99 copyright social utility/social justice interdependence analyses and stratagems can thus be applied toward easing some specific tensions among modern copy- right constituencies, and bridging contemporary copyright social utility and commoditization interests. INTRODUCTION With the advent of the digital information age there has been a refocus of scholarly, policy, and professional attention toward the social utility and so- cial justice obligations of the copyright law. Digital information technology has provided unheralded opportunities for the development, dissemination, and ex- ploitation of individual creative expression. Such technological advance has made possible unprecedented access to copyrighted material through the Inter- net and a variety of digital media formats. In addition, these advances have enabled copyright end-users to engage in new forms of creative expression, not only with respect to their own original expression, but through the reuse or "re- mix" of pre-existing (and previously static) copyrighted material. In the context of global culture, digital information technology presents attractive possibilities for heretofore marginalized groups and cultures to share their indigenous crea- tive expression, not only toward the education of outsiders about their aesthetic customs and cultural beliefs, but also in the cause of economic independence and socio-political empowerment. Notwithstanding this plethora of artistic and educational boons, digital information technology also presents formidable challenges to the social utility structure of the copyright law. While many Americans now enjoy greater access to the national (and multi-national) store of copyrighted works, due to a persis- tent Digital Divide, other citizens remain isolated from such benefits, and in some cases, their access to copyrighted works has actually diminished as digital formats become the dominant medium for creative expression. Perhaps an even greater challenge is posed to the copyright incentive scheme of authors' exclu- sive property
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