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Fair Use and the Digital Millennium Copyright Act (DMCA): A Case for Judicial Review?
Unformatted Document Text:  3 deterioration in quality. The Internet made possible the unrealizable promises of the other means of mass media by making a truly global connection possible. The explosion of information toward the end of the twentieth century on the information superhighway and the subsequent entry and participation of big businesses in the information superhighway has made information as a commodity even more valuable. This coupled with economic globalization created a worldwide market for information producers and creators. There is a universal demand for tighter copyright laws because the digital age made the possible exchange of information between several sources and in several formats possible without diminishing the quality. In the US, the legislative intent behind the constitutional provision for Copyright law and the Congress action on that provision in enacting the 1790 Copyright Act was to ensure that society benefits from creativity by making creativity profitable. 4 By legally making it, for a limited time, economically beneficial to the producers and creators of information, the public is enriched. In recent years and with the advent of globalization, commentators and scholars have argued that subsequent Revisions to the Copyright Act seem to have continually expanded the rights of copyright owners while at the same time contracting the interests of the public. This would seem to run contrary to the legislative intent in copyright law. The enactment of DMCA seem to have energized this concern about maintaining the delicate balance between giving incentive for creativity and making the products of creativity available to the public. Part of the tension stems from the fact that copyright laws at the international level differ from nation to nation in terms of their goal. Paul Goldstein argues that “the predominant forces that have shaped copyright law are economic. Global communities of economic interest among copyright owners have been far more potent than ideology –or for that matter, than the preoccupation of individual nation states-in forming copyright doctrine.” 5 Intellectual property was first annexed into trade matters during the Uruguay Round which led to the TRIPS agreement. 6 The framing of intellectual property laws in economic terms 4 Benjamin Bates, Reinvigorating Fair Use: A Social Economic Approach 2 (1998) (Paper presented to the Communication Law & Policy division of International Communication Association , May 24-28, Washington, DC ). See also TyAnna Herrington, CONTROLLING VOICES: INTELLECTUAL PROPERTY, HUMANISTIC STUDIES AND THE INTERNET 5, (2001) 5 Goldstein, Paul, International Copyright. New York: Oxford University Press p. ix 2001. 6 See generally Ruth Okediji, Perspectives on Globalization from Developing States: Copyright and Public Welfare in Global Perspective, 7 Ind. Global. Leg. Studies 117, 1999; Michael Ryan, Knowledge Diplomacy: Global Competition and the politics of Intellectual Property, 1998; and TyAnna Herrington, Controlling Voices:

Authors: Abah, Adedayo.
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3
deterioration in quality. The Internet made possible the unrealizable promises of the other means
of mass media by making a truly global connection possible. The explosion of information
toward the end of the twentieth century on the information superhighway and the subsequent
entry and participation of big businesses in the information superhighway has made information
as a commodity even more valuable. This coupled with economic globalization created a
worldwide market for information producers and creators. There is a universal demand for
tighter copyright laws because the digital age made the possible exchange of information
between several sources and in several formats possible without diminishing the quality.
In the US, the legislative intent behind the constitutional provision for Copyright law and
the Congress action on that provision in enacting the 1790 Copyright Act was to ensure that
society benefits from creativity by making creativity profitable.
4
By legally making it, for a
limited time, economically beneficial to the producers and creators of information, the public is
enriched.
In recent years and with the advent of globalization, commentators and scholars have
argued that subsequent Revisions to the Copyright Act seem to have continually expanded the
rights of copyright owners while at the same time contracting the interests of the public. This
would seem to run contrary to the legislative intent in copyright law. The enactment of DMCA
seem to have energized this concern about maintaining the delicate balance between giving
incentive for creativity and making the products of creativity available to the public.
Part of the tension stems from the fact that copyright laws at the international level differ
from nation to nation in terms of their goal. Paul Goldstein argues that “the predominant forces
that have shaped copyright law are economic. Global communities of economic interest among
copyright owners have been far more potent than ideology –or for that matter, than the
preoccupation of individual nation states-in forming copyright doctrine.”
5
Intellectual property was first annexed into trade matters during the Uruguay Round
which led to the TRIPS agreement.
6
The framing of intellectual property laws in economic terms
4
Benjamin Bates, Reinvigorating Fair Use: A Social Economic Approach 2 (1998) (Paper presented to the
Communication Law & Policy division of International Communication Association , May 24-28, Washington, DC ). See
also TyAnna Herrington, CONTROLLING VOICES: INTELLECTUAL PROPERTY, HUMANISTIC STUDIES AND
THE INTERNET 5, (2001)
5
Goldstein, Paul, International Copyright. New York: Oxford University Press p. ix 2001.
6
See generally Ruth Okediji,
Perspectives on Globalization from Developing States:
Copyright and Public Welfare
in Global Perspective, 7 Ind. Global. Leg. Studies 117, 1999; Michael Ryan, Knowledge Diplomacy: Global
Competition and the politics of Intellectual Property
, 1998; and TyAnna Herrington, Controlling Voices:


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