Popularity as a Factor in Copyright Law
University of Toronto Law Journal, Vol. 59, 2009
64 Pages Posted: 14 Apr 2008 Last revised: 31 Mar 2016
Date Written: 2009
This article makes a simple yet counterintuitive argument: it advocates the recognition of popularity as a general factor which can limit the scope of copyright protection, across the range of copyright protected works.
Until now, copyright law has not explicitly recognized popularity as a relevant factor which affects the scope of copyright protection. Not only is popularity irrelevant, asserts the "official" copyright position, holding otherwise would be “flipping copyright on its head”, “ignoring [its] major premise”. This article offers an adverse view. It argues that there is solid justification for explicitly recognizing popularity as a factor in copyright law, and for affording the most popular works, across the broad range of works protected by copyright, lesser copyright protection than “regular” works. Thus, the article offers a new and interdisciplinary perspective on the issues of standardization and networks, which have so far been discussed mainly in the context of utilitarian works. It seeks to lay out a comprehensive analytical framework for establishing popularity as a general factor, relevant to determining the scope of protection of the variety of works protected by copyright.
The argument is based on multi-disciplinary scholarship. It uses network science to examine the process leading to extreme popularity of certain works, to identify their common features and to analyze the primary difficulties associated with affording them full copyright protection. Using economic, social and democratic analyses, the article then demonstrates that limiting copyright protection can contribute to solving or at least undermining these difficulties. It further shows that from an “internal” copyright perspective, a narrowing rule focusing on popularity is largely consistent with the prevailing theoretical justifications for copyright, and can even assist copyright law to more accurately draw the desired boundaries of copyright protection. Based upon this analysis, the last part of the article outlines a proposed model for explicitly recognizing popularity as a transparent and established factor which can influence the scope of copyright protection.
Keywords: Copyright, Standardization, Network Science, Popularity, Copyright Misuse
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