Entering the new year, conversations continue in many jurisdictions around copyright reform, including modernizing the way copyright disputes are dealt with in the digital age. In the U.S., artists and other independent content creators continue to mobilize around The Copyright Alternative in Small-Claims Enforcement Act of 2019 (H.R. 2426 / S. 1273), otherwise known as the CASE Act.
Passed by the House of Representatives in late October of 2019 before being stalled in November, the CASE Act proposes the creation of a Copyright Claims Board devoted to hearing copyright disputes in what is essentially a small-claims context. The proposed legislation caps any damages awarded by the Board at $15,000USD per individual work, up to a total of $30,000USD per claim.
The Board is to be made up of three copyright Claims Officers who, the Act states, should be lawyers experienced in copyright law and alternative dispute resolution (ADR). The CASE Act’s proposal for an ADR mechanism for copyright comes after years of discussion on the topic and the introduction of other similar legislation.
The CASE Act is largely drawn from the draft legislative proposal found within a 2013 United States Copyright Office report on copyright small claims. In 2011, at the request of Congress, the U.S. Copyright Office began a general inquiry into the topic. The inquiry sought submissions and commentary from stakeholders on their experiences in pursuing copyright claims with small economic value, as well as input on proposed alternatives to the traditional system for adjudicating these types of disputes. After public hearings in 2012, the U.S. Copyright Office released their findings in September 2013, describing what they identified as the challenges content creators and other American copyright owners face in their attempts to “vindicate their rights and deter continuing violations”.
Proponents of the CASE Act see it as a vital piece of legislation aimed at protecting the livelihood of independent content creators who might otherwise be unable to enforce their rights. As described in the U.S. Copyright Office’s 2013 report, the cost of litigation in the traditional system can outweigh any monetary recovery for lower-value copyright claims. Loss of time that could otherwise be put towards income-generating activities was identified as another major barrier to traditional adjudication, essentially leaving independent creators with claims of small economic value with no viable recourse.
Some argue the Act does not do enough to protect artists. The voluntary nature of the process, allowing parties to opt-out, puts independent creators at a disadvantage when a power imbalance might exist between two parties, one of whom may be better able to bear the time and monetary cost of traditional litigation. Critics also worry about the possibility of misuse, such as with frivolous claims or those brought against ill-informed internet users who may be unwittingly posting copyrighted work on social media, and the difficulties the Act’s opt-out requirement may pose for those caught in a claim with penalties reaching into the tens of thousands of dollars.
This last line of reasoning has been the primary argument of those opposing the bill, which is currently on hold as of January 2020. In November of 2019, Senator Ron Wyden (D-Or) put a hold on the bill, citing concerns about “the unintended side-effects to free expression and due process that are present” in the bill as it is currently drafted.
Here in Canada, copyright disputes can be heard in the small claims court setting, and many similar critiques apply. In Ontario, recovery is capped at $25,000CAD and there is no process of discovery. Equitable remedies are not typically awarded by small claims courts, so if an individual is seeking something other than monetary recovery, they may still be forced down the road of traditional adjudication. Still, having the small-claims option available allows an individual to decide which route may be best for them in their particular circumstances.
As negotiations continue between proponents of the bill and those senators blocking the full vote, the CASE Act will be one to keep an eye on this year.
Meghan Carlin is a first-year student at Osgoode Hall Law School. With her time spent working in music licensing for film and television informing her legal studies, Meghan also acts as a 1L rep for the Osgoode Entertainment and Sports Law Association.