Popularity as a Factor in Copyright Law

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 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 for the variety of works protected by copyright.

The argument is based on multidisciplinary scholarship. It uses network science to examine the process leading to extreme popularity of certain works, to identify their common features, and to analyse 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 resolving – 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 help 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 that can influence the scope of copyright protection.