Copyright protection can be divided into five levels: subject matter, level of abstraction, exceptions, term limit, and restricted acts. Although copyright exceptions, in particular the fair use doctrine, and term limit have been subject to significant economic analyses, studies on protection and the limits of protection of subject matter, and level of abstraction in copyright are still fairly scarce. Furthermore, the dominant model for optimal copyright protection is problematic for it requires a standard-based copyright doctrine to achieve what was postulated. Since copyright doctrines in respect of protection based on the level of abstraction are more rule-based in nature, an alternative explanation is in order. In a recent article titled "Copyright as a Rule of Evidence", Douglas Lichtman (2003) hinted such an approach where evidence plays a role in explaining this set of doctrines. In this paper, we use an abstraction and a probabilistic model to explain copyright doctrines. Copyright doctrines such as the idea-expression dichotomy, the originality requirement, de minimis rule, substantiality requirement, merger doctrine, and the scènes á faire doctrine, have the effect of creating a protection divide. Doctrines such as the causal connection requirement, independent creation defence, and the objective similarity requirement, further create an inference divide. We show that the protection and inference divides are relevant in protecting the literal and non-literal dimensions in a copyrighted work. Furthermore, we find that between the protection divide and the inference divide, there is a region of non-strict liability protection. All these three regions, and the related copyright doctrines, are explained by an evidence theory of minimising the risk of court error in deciding infringement cases.
Download Info
To download:
If you experience problems downloading a file, check if you have the
proper application to
view it first. Information about this may be contained
in the File-Format links below. In case of further problems read
the IDEAS help
file. Note that these files are not on the IDEAS
site. Please be patient as the files may be large.
As the access to this document is restricted, you may want to look for a different version under "Related research" (further below) or search for a different version of it.
References listed on IDEAS Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.: