Copyright violations are abounding because of vagueness in standards and the compounding effect

Bell, Abraham-- Professor, Bar-Ilan University Faculty of Law; Professor of Law, University of San Diego School of Law; and Gideon Parchomovsky-- Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Law School and Professor, Bar-Ilan University Faculty of Law. 2014. “Reinventing Copyright and Patent.” Michigan Law Review 113 (2): 231–78. https://search-ebscohost-com.gonzaga.idm.oclc.org/login.aspx?direct=true&AuthType=ip,cookie,url,uid&db=lgs&AN=99133160&site=ehost-live.

For users and creators of intellectual products, the vague standards mean that litigation over rights can be a roll of the dice. Not all users and creators are equally risk averse. Some creators are happy to take their chances, imposing high costs of risk on all potential risk-averse users. This imposition of risk can constitute a substantial cost to society. High search costs combine with the vagueness of intellectual property rights to make enforcement even more costly for society. The vagueness itself exposes users to high search costs; even where users discover the existence of a protected right, they cannot easily discern what is protected and what remains in the public domain. It bears emphasis, however, that the problem of search costs is distinct from the vagueness problem and that high search costs stem from several sources. The problem is most acute in the context of copyright law, where protection is not conditioned on registration and where most works are not organized in a searchable database or a central repository. Additionally, the tools available for searching copyrighted works are relatively limited.60 While one can search for combinations of words and even for musical compositions and recordings, a potential user will find it very difficult to design effective search algorithms for color combinations, compositions of dance steps, or the design of useful articles. The search tools are even less effective if copyright protection inheres in the selection and arrangement of the constitutive expressive elements of the work.61 Compounding the problem is the fact that legal copyright rights can be nested, meaning that a single expression may turn out to be subject to several different intellectual property rights owned by several different parties, all of which must be collected in order to use the work.62 For instance, a user’s ability to broadcast a film may be subject not only to the rights of the owner of the copyright in the film but also to the rights of the owner of the novel on which the screenplay for the film was based.