Copyright's Framing Problem

80 Pages Posted: 29 Oct 2016 Last revised: 22 Sep 2017

See all articles by Margot E. Kaminski

Margot E. Kaminski

University of Colorado Law School; Yale University - Yale Information Society Project; Yale University - Law School; University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship

Guy A. Rub

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: October 28, 2016

Abstract

Copyright law has a framing problem. The problem is pervasive, unresolved, and often unnoticed, and it significantly impacts the nature and scope of copyright protection. Copyrighted works are complex: books consist of chapters, newspapers consist of articles, and so on. Courts often need to decide whether to frame the work as one comprehensive whole, an approach we call “zooming out,” or to frame it as a combination of many small parts, an approach we call “zooming in.” This framing move occurs across many copyright doctrines: in fair use, infringement analysis, statutory damages calculations, separability determination, and more.

This Article focuses on decisions heavily affected by a court’s framing choice. The results are troubling. The study of those decisions suggests that in the majority of cases, courts frame the work without noticing their framing move. When courts do explicitly reason their framing choices, they use factors that are normatively questionable and increasingly less effective in today’s digital world. Consequently, copyrighted works are framed in an inconsistent way both across copyright law doctrines and within each doctrine. In fact, there is almost no area of copyright law in which courts consistently frame copyrighted works.

These variations in framing choices have costs. While these costs need to be acknowledged and addressed, we reject one intuitively appealing approach to addressing them. Copyright law, we show, should not provide a unified framing test, or unified definition of the “work,” across all its doctrines. Different areas of copyright law face different policy considerations. Sometimes the framing of the work itself may need to change, so that the policy balance behind copyright law can remain constant.

Keywords: Intellectual property, copyright

JEL Classification: O34

Suggested Citation

Kaminski, Margot E. and Rub, Guy A., Copyright's Framing Problem (October 28, 2016). 64 UCLA L. Rev. 1102 (2017); Ohio State Public Law Working Paper No. 370. Available at SSRN: https://ssrn.com/abstract=2860914

Margot E. Kaminski

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of Colorado at Boulder - Silicon Flatirons Center for Law, Technology, and Entrepreneurship ( email )

Wolf Law Building
2450 Kittredge Loop Road
Boulder, CO
United States

Guy A. Rub (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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