Copyright and Social Justice in the Digital Information Society: "Three Steps" Toward Intellectual Property Social Justice

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 _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.