Year: 2013
Type: paratext
Abstract: Copyright enforcement is riddled with false positives.A false positive occurs when enforcement actions are taken against uses that are not actual infringements.Far from benign occurrences, copyright false positives inflict significant social harm in the form of increased litigation and transaction costs, distortions of licensing markets through rent-seeking behavior, increased piracy due to diminished public adherence with copyright law, and the systemic erosion of free speech rights and the public domain.To combat this problem, this Article analyzes the causes that give rise to false positives, as well as their legal and social effects, and offers policy recommendations targeted at mitigating the damage of false positives.These policy recommendations include heightening the registration requirements to include a substantive review of all copyright claims, the promulgation of regulations dictating that copyright registrations be periodically renewed, and revision to the statutory damage provisions of the Copyright Act in order to encourage litigation that would help to excise false positives from the copyright corpus.notre dame law review [vol.89:1 istered marks actually used in commerce, 4 copyrights inure at the moment of fixation 5 without any procedural or substantive inquiry into their scope.6 As such, an author 7 of a putatively original work does not know, ab initio, the amount of protected expression contained in this work, 8 and so is unable to assess accurately the strength of her property claims.9 Her original expression is protected, but the amount of originality her expression contains is often not readily discernible from the work on its face.10 Similarly, it is often difficult to determine what part of another author's work is protected without extensive analysis of the substance of the work and the circumstances surrounding the work's creation.Every form of creative expression-from the crudest imitation to the highest reaches of originality-draws in part from prior art, both in form and in substance.11 As a result, the boundaries of any copyright are vague and vulnerable to interpretation and secondguessing.Such lacunae, in combination with other factors, 12 give rise to an abundance of copyright enforcement false positives, 13 where rights holders erro-4 See 15 U.S.C. § § 1051-1072 (2006).5 See 17 U.S.C. § 102(a) (2006) ("Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed . . ..").6 Subject only to minimal review by the Copyright Office, works that are registered within five years of their initial publication are presumed to contain copyright-protected subject matter, and registration is considered prima facie evidence of validity.See 17 U.S.C. § 410 (2006).Accordingly, in a copyright suit the evidentiary burden is shifted to the defendant to prove the claim's invalidity or to offer an affirmative defense, which dramatically increases the cost of defending against a copyright action.Id. 7 In this Article, the terms "author," "artist," "writer," and "creator" are used synonymously to denote the originator of creative expression, except where otherwise specified.For a general discussion of the definition of authorship in
Source: bepress Legal Repository
Authors: Ben Depoorter, Robert Kirk Walker
Language: English
Topic: Intellectual Property Law
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W1839266825