COVID Relief includes Copyright provisions
Last night, as part of the latest round of COVID relief, Congress enacted new intellectual property regulations within the proposed legislation. There are almost 100 pages of new intellectual property regulations within the COVID-19 appropriations bill. The new legislation has not yet been signed by the President. Based on the proposed legislation, Congress is criminalizing certain streaming activities. They are also creating a small claims copyright tribunal process (the CASE Act). Congress is also changing the trademark process to allow third parties to submit evidence in opposition of a trademark application. Each of these new IP laws warrants further discussion. For now, we will limit our focus on the creation of the Small Claims Copyright Tribunal (the CASE Act).
The CASE Act of 2020
The CASE Act of 2020 is the culmination of years of efforts by the Copyright Office and others. The efforts have attempted to establish a small-claims process for hearing copyright infringement claims. The small-claims copyright court, would provide an alternative venue for copyright disputes.
According to a previously published study from the Copyright Office, the small claims court is necessary. The study indicated there was a need for a new enforcement mechanism for copyright cases. The new mechanism would allow individuals to enforce their copyrights while avoiding the costs and burdens of federal litigation. This is especially helpful for those who do not have the resources needed for traditional litigation. Under the new legislation, a party will be able to bring a copyright dispute in the Copyright Office, rather than through the federal court system. Under the proposed legislation, the responding party would have the ability to opt out of the tribunal process.
Copyright Office Small Claims Court
The small-claims copyright court could hear any copyright case where the amount at issue is under $30,000. The Copyright Office will use a three-judge panel of experts to hear cases. The damages which can be awarded will be capped at $15,000 per claim and $30,000 total. It is hoped that the small-claims copyright court will allow for expedited hearing of infringement disputes. It is also hoped that the this process will be more beneficial to independent artist, photographers and creators.
The new copyright legislation is referred to as the CASE Act. Under the CASE Act, participation in the small-claims copyright court will be voluntary. There will be a streamlined discovery process as well as a limit on the kind of evidence which the parties can admit. Most of the claim will be decided on the submitted evidence and written statements, but the parties can seek to participate remotely. The parties can use their own attorney. Damages, both actual and statutory, will be capped at $30,000 per claim, with a sub‐limit of $15,000 per work. If the parties are unhappy, they can seek to have the final determination reviewed by the Register and challenged in court for certain reasons.
While the legislation is applauded as a win for the little guy or the independent creator, there are others who are skeptical of the process. The discovery process is more limited. The parties’ rights to certain types of discovery will be curtailed. In addition, the CASE Act does not allow for you to recover your attorney’s fees. Some claim the CASE Act legislation was promoted by larger organizations and is intended to serve the large corporations and rights holder entities like the Recording Industry Association of America (RIAA), Motion Picture Association of America (MPAA), ASCAP and others who have a history of going after smaller individual users. In addition, it is suggested that larger corporations, copyright trolls and others will utilize the streamlined process of the tribunal to threaten, harass and extort individuals. The streamlined process may limit the protection provided to individuals by the federal court system.
Others claim that the legislation is a huge win for the individual artist who can’t afford the cost and expense of the federal court system. In addition, some claim that the proposed tribunal will streamline the disputes providing rapid resolution. There is no denying that the federal court system is not an affordable option for most artists and independent creators. The time for a case to come to trial can take years in the federal court system. In addition, most federal judges aren’t receptive to the individual artist claims and simply don’t want to hear a case about a photograph or a movie which has been downloaded. On the other hand, how will the Copyright Office timely process a copyright infringement claim if they take over seven months to process an application? There is merit to both sides. For now, it looks like copyright holders will have a new way to protect and enforce their copyrights, as a result of the COVID relief package.
If you have questions about enforcing or protecting your copyrights schedule a meeting with one of our attorneys.