By Nancy Wolff, Esq., PACA Counsel
On September 30, the Register of Copyrights at the United States Copyright Office published its report on Copyright Small Claims that it delivered to the House Committee on the Judiciary. The report is extensive and reflects the comments of many organizations, the results of public hearings in New York and Los Angeles, a review of legal issues and legislative recommendations. PACA actively participated and responded to three separate Copyright Office Notice of Inquiries addressing specific questions posed by the Copyright Office over the past two years, and participated in two full days of hearings at Columbia University held by the Copyright Office.
PACA strongly supported the study by the Copyright Office and believes that an alternative system is presently needed to ensure that the rights and remedies provided in our copyright regime are available to all copyright owners.
While PACA responded on behalf of its membership, we worked closely with an ad hoc committee of visual arts organizations, including the American Society of Media Photographers (ASMP); Graphic Artists Guild (GAG); Professional Photographer of America (PPA), National Press Photographers Association (NPPA), North American Nature Photography, Association (NANPA), and American Photographic Artists (APA). In general, we all support an alternative forum for claims of lesser economic value that provides fair, timely and economically affordable access to a legal forum.
I am pleased that our comments are reflected in this report and that many recommendations are included in legislative proposal.
While the report is available at the Copyright Office website, the website is currently down due to the closing of the federal government.
“The U.S. Copyright Office today released the findings of its two-year study on copyright small claims. The report documents the significant costs and other challenges of addressing copyright claims that have a relatively low economic value in the current federal system, and recommends the establishment of an alternative voluntary system of adjudication to be housed within the Copyright Office.
In a letter to the House Judiciary Committee, which requested the Report, Register of Copyrights Maria A. Pallante expressed appreciation for the many stakeholders who participated in the Office’s public process and noted the particularly acute impact of small claims issues with respect to individual creators.
For example, in formal comments to the Office, the American Photographic Artists wrote, “the current system deters authors from asserting their rights, renders these cases difficult for any attorney to take on, and encourages copyright infringement by all phases of society.” The Songwriters Guild of America stressed the combined impact of small claims on the livelihoods of individual creators, likening the challenges to “death by a thousand cuts.” Organizations that provide pro bono assistance to lower-income artists, such as California Lawyers for the Arts and the New York-based Volunteer Lawyers for the Arts, emphasized a pressing need for alternatives to federal litigation.
Although the Copyright Office recommends a streamlined approach for small claims, it also underscores that “alleged infringers must be allowed to defend themselves vigorously.” The Report cites the legitimate frustrations of those responding to such claims, who in some circumstances may themselves be smaller actors facing high litigation costs.
In sum, the Office makes the following recommendations:
• Congress should create a centralized tribunal within the Copyright Office, which would administer proceedings through online and teleconferencing facilities without the requirement of personal appearances. The tribunal would be staffed by three adjudicators, two of whom would have significant experience in copyright law – together having represented or presided over the interests of both owners and users of copyrighted works – with the third having a background in alternative dispute resolution.
• The tribunal would be a voluntary alternative to federal court. Its focus would be on small infringement cases valued at no more than $30,000 in damages. Copyright owners would be required to have registered their works or filed an application before bringing an action. They would be eligible to recover either actual or statutory damages up to the $30,000 cap, but statutory damages would be limited to $15,000 per work (or $7,500 for a work not registered by the normally applicable deadline for statutory damages).
• Claimants who initiated a proceeding would provide notice of the claim to responding parties, who would need to agree to the process, either through an opt-out mechanism or by affirmative written consent. Respondents would be permitted to assert all relevant defenses, including fair use, as well as limited counterclaims arising from the infringing conduct at issue. Certain DMCA-related matters relating to takedown notices, including claims of misrepresentation, could also be considered, and parties threatened with an infringement action could seek a declaration of noninfringement.
• Parties would provide written submissions and hearings would be conducted through telecommunications facilities. Proceedings would be streamlined, with limited discovery and no formal motion practice. A responding party’s agreement to cease infringing activity could be considered by the tribunal and reflected in its determination. The tribunal would retain the discretion to dismiss without prejudice any claim that it did not believe could fairly be adjudicated through the small claims process.
• Determinations of the small claims tribunal would be binding only with respect to the parties and claims at issue and would have no precedential effect. They would be subject to limited administrative review for error and could be challenged in federal district court for fraud, misconduct, or other improprieties. Final determinations could be filed in federal court, if necessary, to ensure their enforceability.”