Document Type

Article

Abstract

This Article draws on cognitive research to examine a conflict within copyright doctrine. Scholars typically analyze unauthorized secondary use of expressive works using an economic or a free speech analysis. The former views copyrighted works primarily as products, the latter primarily as speech. Both paradigms focus on the person speaking or distributing informational works. However, copyrighted works contain unique communicative properties that implicate both expression and understanding of that expression. This Article argues that because copyright is a right to control certain types of information, how we process information is relevant in determining copyright's scope. By incorporating lessons from cognitive research on memory, attention, and preference, courts can formulate rules that provide a better balance between the rights of owners and the need for open engagement with expressive works. More generally, a cognitive approach to secondary use refocuses the debate from a question of what users intend to look at what audiences require in choosing and consuming such works. This focus is in keeping with copyright's goal of promoting innovation to further the public good.

Date of Authorship for this Version

May 2005

Keywords

copyright, parody, dilution, fair use

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