Does Copyright Have a Framing Problem?

Margot E. Kaminski & Guy A. Rub, Copyright’s Framing Problem, 64 UCLA L. Rev. 1102 (2017). Michael W. Carroll Numerous provisions of the Copyright Act of 1976 (“1976 Act”) use the term “work” as a key referent for determining copyrightability, ownership, scope of rights, limitations on scope, and remedies. Yet, Congress did not provide a general-purpose definition of what counts as a “work,” even though it defined a plethora of arguably much less important terms. When the parties in litigation explicitly or implicitly disagree about the fundamental issue of what the plaintiff’s or defendant’s work is, what is a court to do? This is a big and important question. While Kaminski and Rub do not provide a full response, they do frame the problem and illustrate how it plays out in many contexts. They demonstrate that courts have considerable flexibility in how to define the relevant work. Sometimes, courts use this…

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