Copyright


Congress Takes Up Copyright Reform—And What It Could Mean For You

March 6, 2017

By David Walker

Illustration by Sharon Ber

Congress will take another stab at copyright reform this year. The House Judiciary Committee proposed changes in December that include updating the U.S. Copyright Office, making it more independent of the Library of Congress, and establishing a copyright small claims “system.”

“These policy proposals are not meant to be the final word on reform…but rather a starting point for further discussion by all stakeholders,” House Judiciary Committee Chairman Bob Goodlatte said in a joint YouTube announcement with ranking committee member John Conyers. Their cautious words reflected the fierce opposition to previous copyright reform efforts, namely the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA). Both ran into widespread online protests in 2011, and went down to defeat in 2012.

Already, House Judiciary Committee members Judy Chu and Lamar Smith have co-sponsored a bill, called the Fairness to Small Creators Act, to establish a copyright small claims board. The idea of the board is to make it easier and less expensive for individual copyright holders to sue copyright infringers.

Many copyright owners and the trade groups representing them have expressed enthusiastic support for the reforms. ASMP says it “applauds” the Chu bill. “Small creators would no longer be frustrated in their efforts to protect their works by the prohibitive and burdensome federal court process,” ASMP executive director Tom Kennedy said in a prepared statement. “Small claims legislation will help ensure that small creators have a fair, effective and streamlined process for seeking relief in the face of relatively modest copyright infringements.”

David Trust, CEO of Professional Photographers of America, also said in a prepared statement that his organization is “very pleased” with the small claims legislation and the proposed restructuring of the copyright office. “All of this seems to indicate an emerging feeling on The Hill that it is time to finally do something to help photographers and other small creators,” he said in his statement.

Goodlatte and Conyers issued a one-page document outlining the Judiciary Committee’s proposals, but they included few details.

The first proposal was to make the U.S. Copyright Office more independent of the Library of Congress by giving it a separate budget, and by making the Registrar of Copyrights “subject to a nomination and consent process.” Currently, the Librarian of Congress has the power to hire and fire the registrar without congressional oversight.

The second proposal was to establish various committees of outside advisors to keep the Library of Congress more current on—and responsive to—changes in technology, archiving practices, and other matters.

The third proposal was for a “small claims system” that “should handle low value infringement cases as well as bad faith Section 512 notices.” By “bad faith Section 512 notices” the legislators mean Digital Millennium Copyright Act (DMCA) take-down notices meant to stifle free speech under the guise of protecting copyright.

Chu and Smith spelled out details for the small claims system in their “Fairness to Small Creators” bill. That bill is subject to a long process of committee hearings, revisions, and votes. But under the bill’s first draft, copyright holders would have the option to have their infringement claims heard by a board of three copyright claims officers appointed by the Librarian of Congress.

The copyright holders could seek actual damages or statutory damages of no more than $7,500 per work infringed, and total damages of no more than $30,000. Defendants would have 60 days to opt out of the process. Defendants who don’t opt out would be able to file counter-claims with the board, which would be heard concurrently with the plaintiff’s claims.

But if a defendant opts out, or if a copyright holder wants to claim damages above the specified limits, the copyright holder would have to sue the traditional way: in federal court.

The copyright claims board would make copyright claims easier and less costly for plaintiffs by cutting back on legal procedure that federal courts use. For instance, discovery would be more limited, without depositions, without back-and-forth legal motions, and with expert witnesses allowed only in special cases. The three officers appointed to hear claims would have the power to consider documents and testimony presented by both sides, ask questions, and rule on claims by majority vote.

Both parties would have a right to appeal decisions, first to the copyright small claims board itself, then to the Register of Copyrights. The decisions by the Register of Copyrights would be final, and would not be subject to appeals to federal court. However, winners could petition federal courts for an order affirming the small claims board’s decision, in the event that the losing party refuses to pay damages.

American Photographic Artists, the trade group for advertising photographers, is giving cautious support to the “Fairness to Small Creators” bill. APA Executive Director Juliette Wolf-Robin explains that when commercial/advertising uses are infringing, they are not “small” infringements because damages usually exceed $7,500 per work infringed. “We do not want this [small claims board proposal] to ever be used to work against the ability to bring a [copyright] claim to federal court,” Wolf-Robin says.

She said APA is more interested in the proposals put forth by Goodlatte and Conyers to modernize the copyright office, because APA believes the office is underfunded, its information technology is outdated, and its copyright registration system and rules are too complicated.

But there will be plenty of opposition to all the proposed reforms, particularly from tech companies and advocates for the free flow of information in the digital age. Ernesto Falcon, Legislative Counsel at the Electronic Frontier Foundation, says that fixing problems in the U.S. Copyright Office “is a matter of good management and good oversight. I think they have the ability to do that without a change in the political structure.”

He also criticized Chu’s “Fairness to Small Creators” bill on the grounds that it “proposes to have the legislative branch serve the role of the judiciary,” in violation of the constitutional separation of powers. Falcon also says that the attempt to make litigation cheaper for plaintiffs is a threat to the rights of defendants. “The [Chu] bill proposes to condense the trial process, and certain things critical to defendants’ having full exercise of their rights,” he says.

Once again, proponents of copyright reform appear to be in for a tough fight.

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