Popularity as a Factor in Copyright Law

Abstract

This article makes a simple yet counterintuitive argument: it advocates the recognition of popularity as a general factor that 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 that affects the scope of copyright protection. Not only is popularity irrelevant, asserts the ‘official’ copyright position, but holding otherwise would be ‘flipping copyright on its head’ and ‘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 is afforded to ‘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 utilita...