Copyright Commons

• Jurisdiction: United States,Federal
• Citation: Vol. 47 No. 4
• Publication year: 2022
• Author: Elizabeth S. Lachman
• topic: Copyright law,Federal,Civil Procedure

COPYRIGHT COMMONS

Elizabeth S. Lachman
MGA Entertainment

THE COPYRIGHT CLAIMS BOARD EXPERIMENT: VOLUNTARY AND INEXPENSIVE RESOLUTION OF SMALL-ISH COPYRIGHT CLAIMS

As of June 2022, the Copyright Claims Board (CCB) is "open for business" and the first claims have been filed. Described as a panel dedicated to adjudicating copyright "small claims," the CCB offers a user-friendly, budget-friendly forum for copyright owners to enforce their rights—for the most part (more on that below). With fewer than 200 claims filed as of the date of this article, and no claims yet decided on the merits, it is still early days and too soon to tell who the CCB's primary users will be and how, if at all, this newly launched alternative will change the landscape of copyright litigation.

What Is the CCB?

The CCB is a "three-member tribunal within the [U.S. Copyright] Office that provides an efficient and user-friendly option to resolve certain copyright disputes that involve up to $30,000," which the CCB calls "small claims."¹It was established through the Copyright Alternative in Small-Claims Enforcement Act of 2020 ("CASE Act"), signed into law in December 2020.² Its purpose, according to the Copyright Office's Final Rule, is to serve as "a voluntary, alternative forum to federal court for parties to seek resolution of copyright disputes that have a low economic value ("small copyright claims")."³

The CCB "is intended to be accessible especially for pro se parties and those with little prior formal exposure to copyright laws who cannot otherwise afford to have their claims and defenses heard in federal court."⁴ The CCB was 15 years in the making. Its design takes into account data and research into the challenges faced by those involved in small-value copyright claims—most challenging being the financial cost of litigating in Federal court.

True to its purpose, the CCB is streamlined, accessible, and relatively inexpensive. A party does not need to be represented or have legal background to file a claim, though there is no prohibition on being represented by an attorney.⁵ The CCB website (www.ccb.gov) has robust self-help resources to assist in navigating the claims process.⁶The Act also requires the Register of Copyrights to hire no fewer than two Copyright Claims Attorneys to "assist in the administration of the Copyright Claims Board.⁷ These Claims Attorneys "are tasked with assisting the public, including potential claimants and

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respondents with respect to the procedures and requirements for litigating before the Board."⁸

It is an affordable process, with a filing fee of $40 to file the claim, and a second fee of $60 payable in the event the respondent does not opt out and the claim proceeds. For comparison, the initial filing fee in federal court is a hefty $350. And, while the CCB is located at the Copyright Office in Washington D.C., claimants may be located anywhere. Filings are electronic and participation is remote, making it truly accessible.⁹ Consistent with its aim to keep proceedings streamlined and cost-effective, discovery is more limited.¹⁰ According to the CCB's website, the discovery "time period will be relatively brief, and the scope of discovery, which includes [interrogatories] and document requests, will be limited."¹¹ The statute also specifies requests for admission as a method of discovery. That's right, depositions are not identified, at least not expressly.¹²

Significantly, the CCB also allows would-be litigants to file a claim even if their infringed work has not yet been registered.¹³ The Act's legislative history notes that while copyright registration "helps to produce a valuable public record of American creativity as well as material information to parties in litigation," it has also acted as a "a procedural hurdle for copyright claimants...who may not be aware of the repercussions of not registering in a timely manner."¹⁴ One cannot initiate a federal lawsuit until the Copyright Office has either issued or denied issuing a copyright registration. Congress found that "many small claimants currently do not register their works because they do not expect to be able to enforce their rights in federal court."¹⁵ With those financial and procedural hurdles in mind, the CASE Act permits CCB claimants to file a CCB claim once an application for registration has been submitted, allowing the claimant's proceeding before the CCB to advance while the work's registration is in process. And, to ensure that registration is decided before the CCB renders a decision, the CASE Act directs the Copyright Office to create regulations allowing it to decide on an expedited basis, the copyright registration of an unregistered work that is the subject of a CCB proceeding.¹⁶

Who Decides CCB Claims?

Have you ever thought that copyright cases should be decided by someone who really knows copyright law? Like by someone who has years of experience dealing with copyright cases; maybe even exclusively? This is where the CCB shines—in theory (again, it's too early to tell in practice). CCB claims are decided by three full-time Copyright Claims Officers who are meant to be experts in the field. These Officers are recommended by the Register of Copyrights and formally appointed by the Librarian of Congress.¹⁷ The Act is specific about qualifications. Two of the Officers "shall" have "substantial experience in the evaluation, litigation, or adjudication of copyright infringement claims; and between those two Officers, have represented or presided over a diversity of copyright interests, including those of both owners and users of copyrighted works."¹⁸ The third officer "shall have substantial familiarity with copyright law and experience in the field of alternative dispute resolution, including the resolution of litigation matters through that method of resolution."¹⁹Generally, the Officers serve a term of six years.²⁰You can read the bios of the current CCB Officers on the CCB's website.²¹ Spoiler alert: they are eminently qualified to decide your copyright case.

What Exactly Can the CCB Do?

According to the CASE Act, 17 U.S.C.A. 501 et seq., and related regulations, the CCB generally has the authority to decide three types of claims: (i) claims for copyright infringement; (ii) claims for a declaration of non-infringing activity; and (iii) claims under section 512(f) for misrepresentation in connection with a notification of claimed infringement or a counter notification seeking to replace removed or disabled...