U.S. Bill Would Introduce a Copyright Claims Board

You may have heard that 2016 was an election year in the United States. Congress and life go on, and Representatives Judy Chu (CA-27) and Lamar Smith (TX-21) introduced this month a bill, the Fairness for American Small Creators Act, which would amend the Copyright Act to introduce a Copyright Claims Board (the Board). The press release is here. 

The Board would be established within the Copyright Office and would be an alternative forum to resolve some, but not all, copyright claims (collective sigh of relief from IP attorneys).

Three Copyright Claims Officers

Three full-time copyright claims officers would serve on the board for a six-year term. They would all be attorneys with at least seven years of legal experience. Two of the copyright claims officers would “have substantial experience in the evaluation, litigation, or adjudication of copyright infringement claims and, between them, … have represented or presided over a diversity of copyright interests, including those of both owners and users of copyrighted works. The third copyright claims officer [would] have substantial experience in the field of alternative dispute resolution.”

They would be independent from the Register of Copyrights, but could consult it on general issues of law, but not with respect to the facts of any particular matter pending before the Board or the application of law to a particular matter. The Board’s decisions could be reviewed by a court.

Copyright Claims Attorneys

No less than two attorneys would be appointed by the Register of Copyrights to assist in the administration of the board. They would have to have at least three years of copyright law experience.

Authority and Responsibilities of the Copyright Claims Board

The Board would determine whether a particular copyright claim, counterclaim, and defense could be brought before the Board, and would ensure that they are “properly filed and otherwise appropriate for resolution by the Board.” The Board would manage the proceedings of the Board and render rulings relating to the consideration of these claims, which would include scheduling and discovery. Indeed, the Board would have the power to request the production of information and documents relevant to the resolution of a claim, and to conduct hearings and conferences. The Board would also have the power to facilitate the settlement of any claim or counterclaim of parties and to require cessation or mitigation of an infringing activity, including takedown or destruction of infringing materials, but only if the party asked to do so agrees.

Authority and Responsibilities of the Copyright Claims Attorneys

Copyright Claim Attorneys would have to provide assistance to the copyright claims officers in the administration of their duties, and provide assistance to members of the public with respect to the procedures and requirements of the Board.

Proceedings

Parties would only participate in a Board proceeding on a voluntary basis and the right of any party to pursue a claim in any court of law would be preserved. The claim would have to be filed no more than three years “after the claim that is the basis for the proceeding accrued.” The Board could review claims for infringement, or provide a declaration of non-infringement, unless the claim is already pending before, or finally adjudicated by a court of law. Both parties would have to be in the U.S. The Board could award actual damages and limited statutory damages, but the latter could not exceed $15,000 per work infringed.

This would be a centralized process, as the Board would conduct proceedings “by means of Internet-based applications and other telecommunications facilities, except that in any case involving physical or other nontestimonial evidence, the Board may make alternative arrangements for the submission of evidence if the arrangements do not prejudice another party to the proceeding.”

The parties could be represented before the Board by an attorney or law student who is qualified under applicable law to represent a party on a pro bono basis.

It is an interesting proposal, especially as the whole procedure could be conducted electronically. Allowing qualified law-students to represent parties may, however, have a somewhat limited impact on the ability of parties to seek pro bono counsel, as U.S. states typically require law students representing parties pro bono to be supervised by a faculty member or a practicing attorney.

Image courtesy of Flickr user Michael Coghlan under a CC BY-SA 2.0 license.

Some News from the U.S. Copyright Office

U.S. Copyright Office Publishes Its Online Fair Use Index

The U.S. Copyright Office recently published online its Fair Use Index. It explains on its site that “[t]he goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody). The Index was created “to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair.”

The Index allows visitors to search a database of fair use judicial decisions from federal jurisdictions, district courts, courts of appeal and the U.S. Supreme Court. The Index does not, however, include all judicial opinions on fair use, but will be updated and expanded periodically. When clicking on a particular decision, a new page opens, which is a pdf document about the case, informing the reader about its date, court, key facts, issue, holding, tags and outcome. What is particularly interesting is the ability to search fair use cases for specific categories, such as “parody” or “music.”

This is a welcome initiative, as fair use is always a mixed question of law and facts and there is no way to predict with certainty if a particular use will be deemed fair by the courts. However, one can regret that the Index does not include the full text of the courts’ opinions, but only their citations, which can be used to easily search for them online, including on free sites such as Google Scholar or Justia.

House Judiciary Committee Hearing: The Register’s Perspective on Copyright Review

On April 29, the House Judiciary Committee held a Hearing on The Register’s Perspective on Copyright Review. It heard the Honorable Maria A. Pallante, Register of Copyrights and Director of the United States Copyright Office.

In her 36-page written statement, Ms. Pallante wrote about the role and functioning of the Copyright Office and listed the “policy issues that are ready for legislative process” (Pallante, p. 10). These issues are: music licensing, small claims, felony streaming, section 108 on library exceptions, orphan works, resale royalty, improvements for persons with print disabilities, and section 1201 on regulatory presumption for existing exemptions.

Music Licensing

Indeed, the Copyright Office published last February its Copyright and the Music Marketplace report, which suggested some changes in music licensing such as fully federalizing pre‐1972 sound recordings, which are currently only protected under state law, a situation which, for the Copyright Office, “impedes a fair marketplace.”

Small Claims

The Subcommittee on Courts, Intellectual Property & the Internet held a hearing in July 2014 about copyright remedies, where the issue of small courts was discussed (see transcript here). Ms. Pallante quoted Representative Coble, who said during this hearing that “smaller copyright owners find it not worth their time or money” to litigate (Pallante, p. 12). As early as 2013, the Copyright Office recommended the creation of an administrative tribunal, to serve as an alternative to federal courts in some copyright infringement cases. It would be interesting to see if this tribunal will finally be created.

Felony Streaming

Ms. Pallante also recommended that Congress “bring the criminal penalties for unlawful streaming in line with those for other criminal acts of copyright infringement,” that is, charging people engaging in unlawful internet streaming with a felony, not a misdemeanor as it is the case now (Pallante, p. 13).

Section 108 Library Exceptions

As for Section 108, it “fails to address the ways in which libraries really function in the digital era, including the copies they must make to properly preserve a work and the manner in which they share or seek to share works with other libraries” (Pallante p. 14). The Copyright Office is of the opinion that “Section 108 must be completely overhauled” and is currently preparing a discussion draft (Pallante, p. 15).

Orphan Works

Ms. Pallante also wrote that “[o]rphan works is ripe for a legislative solution” and affirmed that “the Copyright Office favors a legislative framework in which liability is limited or eliminated for a user who conducts a good-faith, diligent search for the copyright owner” (Pallante, p. 16). However, the rights of the authors, copyright owners and their heirs must be preserved as well.

Resale Royalty

The Copyright Office agrees that resale royalties rights (or droit de suite) may benefit certain visual artists, who are now at a disadvantage under current U.S. law, as they cannot take advantage of the value of their work going up. As such, “there are sound policy reasons to address this inequity, but … the administrative and enforcement costs of a resale right might be substantial.” Therefore, the Copyright Office suggests that Congress should “consider a number of possible alternative or complementary options for supporting visuals artist within the broader context of art industry norms, art market practices, and other pertinent data,” but Ms. Pallante did not elaborate further. (Pallante, p. 19).

Improvements for Persons with Print Disabilities

As for the improvements for persons with print disabilities, the Copyright Office “supports swift ratification of the recent Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, and is currently working with the Administration to achieve that result.”

Ms. Pallante also listed other “policy issues that warrant near-term study and analysis” (p. 21). They are other issues of Section 1201, such as its anticircumvention provisions, Section 512 on notice and takedown, and safe harbor, mass digitization, and moral rights.

Section 1201 Anticircumvention Provisions

Ms. Pallante noted that the anticircumvention provisions of Section 1201 prevent consumers from “engaging in activities, such as the repair of their automobiles and farm equipment, which previously had no implications under copyright law” (Pallante, p.24). That issue has been in the news lately, as the proposed exemption to prohibition on circumvention of copyright protections systems for access control technologies was published on December 12, 2014, and

“would allow circumvention of TPMs [ Technological Protection Measures] protecting computer programs that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.”

An IP counsel for John Deere, manufacturer of agricultural, construction, and foresting equipment, recently sent comments to the Copyright Office about this proposed exemption, stating that it is overbroad and that it would violate vehicle manufacturers’ copyright in their software, and that the user of the tractor merely has an implied license for the life of the vehicle to operate it. Congress already passed last year the Unlocking Choice and Wireless Competition Act, which allows consumers to unlock their cell phones. Will Congress also unlock tractors? I will keep you up to date on this important issue, of course. Vroom.

DMCA Notice and Takedown

Ms. Pallante also wrote about the DMCA safe harbors. As the courts have sometimes interpreted these provisions “in ways that some believe run counter to the very balance that the DMCA sought to achieve,” the Copyright Office believes it is time for a “formal and comprehensive study” on the issue. Ms. Pallante mentioned the cost of sending DMCA notices, and how difficult it may be for copyright holders to enforce their right under this take down system.

Mass Digitization

The Copyright Office is completing its analysis of copyright issues raised by mass digitization projects, such as Google Books. Ms. Pallante noted that the problem with mass digitization is “a lack of efficiency in the licensing marketplace,” as it is both costly and cumbersome to secure the sometimes millions of authorizations, to the point that rights clearance is a burden (Pallante, p. 26). Even though fair use may be of help, “the complexity of the issue and the variety of factual circumstances that may arise compel a legislative solution” (Pallante, p. 27). The Copyright Office “as part of its orphan works and mass digitization report, …will recommend a voluntary “pilot program” in the form of extended collective licensing (“ECL”) that would enable full-text access to certain works for research and education purposes under a specific framework set forth by the Copyright Office, with further conditions to be developed through additional stakeholder dialogue and discussion” (Pallante p. 27).

Moral Rights  

The Copyright Office “believes that [the issue of moral rights] is a critical topic for further analysis.” Individual authors face moral right issues, such as attribution and the right to say no to particular uses, and Ms. Pallante noted that some academics questioned the strength of moral rights in the U.S. after the Supreme Court Dastar Corp. v. Twentieth Century Fox FilmCorp. case.

“In the Office’s view, any comprehensive review of the functioning of the copyright system must give serious and sustained attention to the individual rights of authors—apart from corporate interests—and the need to ensure that those personal interests are adequately protected. For this reason, the Office believes that further formal study of moral rights in the United States is an appropriate next step in the congressional process” (Pallante p. 28).

It seems that the year ahead may see, if not legislation, at least some interesting discussions about U.S. copyright.  

Image of Copyright Office Hearing Room courtesy of Flickr user Peter Brantley under a CC BY 2.0 license. 

Image of books courtesy of Flickr user mollyali under a CC BY-NC 2.0 license.

Small claims for copyright on track

England and Wales have a new ‘small claims track’ at the Patent County Courts, simplifying the process for copyright owners who want to take action against others who they believe have infringed their rights – and whilst this may well involve commercial disputes, a number of commentators have pointed out that the Court could hear civil cases against individual suspected file-sharers. The main limit to the court’s jurisdiction is the usual cap for damages for small claims which cannot exceed £5,000. 

The move, which can trace its recent history back to the Hargreaves Review of Intellectual Property, means copyright claims can be dealt with in a swifter, less formal and cost effective manner and certainly at least partially addresses the concerns of some small businesses - photographers, illustrators, cartoonists and some designers all spring to mind, who had no real way of protecting their rights due to prohibitive costs. The new system also provides an alternative to the still partially dormant Digital Economy Act, which when (or if) implemented will provide a ‘three strikes’ regime in the UK, although as yet the ‘third strike’ is undecided, meaning such small claims litigation might well be a viable sanction for rights owners until parliament revisits the legislation. 

Michael Fallon MP, the Business Minister, said: "Small firms, whose intellectual property has been infringed, will have today a simpler and easier way to take their cases forward, by writing direct to the judge and setting out the issues.Lower legal costs will make it easier for entrepreneurs to protect their creative ideas where they had previously struggled to access justice in what could often be an expensive progress. A smarter and cheaper process is good for business and helping businesses make the most of their intellectual property is good for the economy". Interestingly Peter Bradwell from the Open Rights Group supported the move saying "A less costly and complex route to justice is another important step towards intellectual property laws that are fit for the digital age. A small claims track will mean creators can access justice more easily when their rights are infringed. And it should help consumers defend themselves against lower value infringement claims". 

More on this in the ISP Review here http://www.ispreview.co.uk/index.php/2012/10/small-claims-track-makes-court-best-for-handling-uk-internet-piracy-cases.html

Automated half-hour TV trials for small copyright claims?

After the mega-controversies over SOPA/PIPA and Megaupload, it's good to see that the US has not lost sight of the smaller picture. This blog is reminded by Rob Kunstadt that, back in October of last year, the US Copyright Office requested suggestions for the handling of small copyright claims [Federal Register of October 27, 2011, Docket No. 2011-10]. Together with Professor Fritjof Haft (Professor of Law and Legal Informatics, EBS Law School, Wiesbaden, Germany) Rob has responded to this request with a 16-page comment which you can read here. In essence, Rob explains:

"The first prong is to institute special procedural rules to expedite such cases. The procedural rules must be designed so that the desired effect is achieved automatically, by ‘social engineering’ … A set of such rules for efficiently handling small business disputes has already been proposed by co-author Kunstadt, and they were published under the title ‘Half-hour Trials, as on TV’ in the National Law Journal of March 13, 2000, p. A22. They may readily be implemented for the handling of small copyright cases. 

The second necessary prong is use of computer-automation to facilitate the preparation and disposition of small copyright cases by easing the workflow for parties and judges. Work on such automation is already underway and it has been implemented in Germany by co-author Haft, in connection with NORMFALL software for expedited case-handling on a ‘one-write’ basis." (pp. 3-4).

This blogger is fascinated with the notion of social engineering as a means of resolving small copyright disputes, but wonders whether the world is ready for it ...