United States Copyright Office (2013b)

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Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

United States Copyright Office (2013b)
Title: Copyright Small Claims
Author(s): United States Copyright Office
Year: 2013
Citation: Copyright Small Claims, United States Copyright Office (2013), available at http://copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: In 2012 and 2013, the Copyright Office released three Notices of Inquiry for comment (attracting 55, 25, and 27 stakeholder respondents, respectively). In 2013, two stakeholder representative roundtables were held in Los Angeles (18 participants) and New York (19 participants).
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • 2012-2013
Funder(s):
  • United States Copyright Office

Abstract

As provided in the Constitution, the rights granted to authors are not merely to be articulated, but also “secured." Unfortunately, and perhaps ironically, as the rate of infringement has increased, so too have the barriers to pursuing copyright claims in the federal courts. These barriers are largely practical: federal litigation is expensive and time-consuming, and therefore out of reach for many copyright owners. The problem is especially vexing in the context of small claims, where the injury may be limited or difficult to measure. If exclusive rights are unenforceable, they are weakened as the pillars of the copyright law, and public respect for our nation’s creativity is eroded in turn. The problem of modest-sized copyright claims, on the one hand, and costly enforcement, on the other, appears to be especially acute for individual creators.

In comments submitted to the Copyright Office in the course of this study, the Graphic Artists Guild wrote that “as a practical matter, except for large corporate copyright owners, our current copyright laws are virtually unenforceable when it comes to the infringement of visual works.” In a similar vein, American Photographic Artists explained that “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 Alliance for Visual Artists pointed out that “the traditional method of protecting copyrights … is simply impracticable for a small business photographer with limited income.” Observing that “we weaken markets for valuable goods at our collective peril,” the Authors Guild reported that a majority of authors surveyed saw the need forthat while “such small claims and random infringements may seem unimportant, … taken in the aggregate, they have an effect on the livelihoods of individual creators akin to the infamous torture ‘death by a thousand cuts.’”

Creators are not alone in voicing these concerns. Citing the “hindrances that currently exist in preventing copyright owners from pursuing copyright claims of relatively small economic value,” the American Bar Association’s Section of Intellectual Property Law offered recommendations in support of “a much needed avenue for small copyright claims adjudication.” 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 what they saw as a pressing need for alternatives to federal litigation.

Finally, the frustrations of those seeking to defend against claims of infringement – who themselves may be smaller actors and who also face high litigation costs – cannot be overlooked. The Copyright Office trusts that the findings and recommendations of this Report will be helpful to Congress as it continues to explore the issue of small copyright claims.

Main Results of the Study

In brief summary, the Report 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 to have 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.

Policy Implications as Stated By Author

Based on input from roundtables and Notices for Inquiry, the Copyright Office recommends the creation of a small claims copyright court to best serve creators and authors.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 117
Level of aggregation: Stakeholders
Period of material under study: 2012-2013


Sample size: 37
Level of aggregation: Stakeholders
Period of material under study: 2013