Author(s)
Margot Kaminski and Guy A. Rub
Source
UCLA Law Review, Vol. 64, 2017 (forthcoming)
Summary
Many copyrighted works can be divided into smaller parts. A court’s decision to frame a copyright dispute by considering the whole work often yields a different outcome than considering only a part. Framing decisions are inconsistent. But taking a unified approach to framing makes little sense.
Policy Relevance
Courts should consider many factors in deciding whether to consider a work as a whole, or divide it into parts.
Main Points
- Complex copyrighted works like books, newspapers, CDs, or songs, can be broken down into parts, such as chapters, articles, songs, or notes.
- The Copyright Act does not define what should be considered a “work;” courts sometimes consider the work as a whole, “zooming out,” or as a collection of small parts, “zooming in.”
- Framing is important in cases involving infringement, fair use, damages, and others:
- Infringement depends on “substantial similarity;” some courts have decided that similarity of small parts is enough, even if the work has a whole is different.
- In other infringement cases, overall similarity is enough, even if parts are very different.
- Most courts do not provide good reasons for their framing choices; overall, framing choices are inconsistent.
- Courts that discuss framing often consider market factors, asking if the small part of a work could be purchased and enjoyed by consumers alone.
- Digital technology fractures markets; tiny pieces of works are now sold.
- Counting each piece as a “work” multiplies damages awarded from thousands to millions of dollars, an absurd result.
- If one may only use a work by licensing, other’s creativity might be impeded by transaction costs.
- Copyright law should not provide a unified framing test, or unified definition of the “work.”
- Courts should consider many factors in framing decisions, balancing the need to protect author’s incentives to create new works with other’s need to access and re-use the work.