Copyright Office Hosts State Sovereign Immunity Roundtables

Background

On Friday, December 11th, the U.S. Copyright Office held a series of four roundtable discussions, with an additional open mic session, as part of its ongoing study on state sovereign immunity and the extent to which copyright owners are experiencing infringement by states without adequate remedies under state law. Below is a summary of each session and its topics.

Session 1 – Evidence of Infringement, Part 1

Session 1 primarily focused on evidence of infringement presented during the Copyright Office’s public comment period, including the results of the Copyright Alliance’s survey. Kevin Madigan (Copyright Alliance VP, Legal Policy and Copyright Counsel) described the survey results, which showed a steady increase in instances of state entity infringement over the past twenty years. While critics of the survey claimed that the number of respondents who identified instances of state infringement was not sufficient enough to show widespread harm, Madigan explained that instances of infringement were likely much higher, given that many respondents described multiple—and in some cases hundreds of—encounters with unauthorized use by state entities. Additionally, the numbers only reflect infringement that has come to the attention of a copyright owner, and because most creators don’t have the time or resources to monitor for infringement, the survey responses are likely only the tip of the iceberg.

State entity representatives participating in the session argued that fair use and other exceptions are important to consider, but Madigan explained that that while opponents of abrogating state immunity claim that most university uses are fair, it is ultimately irrelevant because abrogating sovereign immunity will do nothing to affect a state entity’s ability to raise a fair use defense, along with any other limitation or exception.

Statements by Session 1 panelists in favor of abrogating sovereign immunity highlighted how the cost and time associated with pursuing infringement claims is most often not worth dealing with because the lack of adequate remedies and access to damages. The hardships copyright owners face in with regard to state infringement has been intensified the COVID-19 pandemic, as detailed by Andrea Johnson (C Math is Easy, Senior Math Specialist) who spoke of her struggles just trying to reach anyone in state entity offices.

Further, as Jeff Sedlik (Photographer, Professor at the Art Center College of Design, President and CEO of the Plus Coalition) explained, creators can’t take the time to fully investigate instances of infringement as they devote most of their time to creating and supporting themselves and their families. According to Sedlik, remedies like injunctive relief are not helpful because they don’t compensate for past damages or lost licensing opportunities.

State entities representatives argued that it wouldn’t make sense for universities and other entities to pay licensing fees if they planned to infringe upon copyrighted works, but simply because state entities license works in some circumstances doesn’t mean that harmful and even intentional infringement occurs in others.

Session 2 – Evidence of Infringement, Part 2

The second session continued the discussion on evidence of infringement, this time focusing on what the standard of intent should be to show non-negligent or intentional infringement. State entities re-emphasized how infrequently they see infringement allegations at their respective institutions, claiming infringements are most likely due to employee misinformation or mistake. Many state participants praised the breadth and effectiveness of their copyright educational programs, claiming that due to existing programs and policies, intentional infringement was highly unlikely.

The conversation turned to licensing standards, with the state entity representatives asserting that they do not use sovereign immunity as a strategic tool during licensing negotiations. They argued that because public institutions are stewards of creative works and copyright owners themselves, and the fact that they have to answer to the state legislature and general public, they have a strong incentive not to infringe. As such, they reasoned that state entities only resort to sovereign immunity as a basis for dismissing an action when other meritorious defenses would be more expensive to pursue.

But, as described by Brian Wassom (private practitioner, IPLA), this use of the sovereign immunity defense is troubling as it allows state entities to decide whether an infringement case is frivolous. If the public entity doesn’t like what another party decides is fair, it will exercise the sovereign immunity trump card. While roundtable participants may have noble policies, not all state entities do, as evidenced by the behavior of North Carolina in Allen v. Cooper, and many don’t have the same respect for or understanding of copyright that some universities might.

Session 3 – State Policies and Practices

Session 3 participants primarily discussed state policies and practices and how they differ from those private institutions employ. It should be noted that this session included mostly university officials and no one representing the creative or copyright communities. State entities described polices they have in place for when infringement does occur, or for copyright owners to contact them if they believe infringement has occurred.

The Copyright Office moderator asked about the role of sovereign immunity for state universities and whether there is a difference in the behavior of private and public universities when it comes to using copyrighted works. The state representatives stated that the biggest difference between their institutions and private institutions is the increased transparency and accountability to both the state and the broader public, and sovereign immunity emboldens public institutions and insulates them when relying on fair use. For them, sovereign immunity is a “catastrophic insurance policy.” But it remained unclear whether sovereign immunity is required for state entities to function, as private universities appear to be doing fine without it.

Session 4 – State Law Remedies

Panelists in the fourth session discussed the adequacy of state law remedies for copyright infringement. Michael Bynum, book editor and author, explained how injunctions are not a strong remedy because they do not address damage that has already been done.

Alicia Calzada of the National Press Photographers Association (NPPA) further explained how injunctions don’t remedy the market harm to photographers. Specifically, she explained how a client may pay to license a photograph, but then see another entity using it for free and/or in violation of an exclusivity license. Calzada also described how injunctions are difficult to get because courts don’t want to be seen as banning or punishing a behavior that may have ties—albeit tenuous—to speech.

Madigan took issue with one participant’s claim that the DMCA gives copyright owners a powerful tool to deal with state infringement. He reminded the group that the Copyright Office’s recent Section 512 Report and continuing DMCA-focused hearings before Congress have made it abundantly clear that the notice and takedown system is not an effective mechanism for copyright owners to combat infringement.

Madigan explained that similar to an injunction, takedown notices only allow a copyright owner to stop one specific instance of infringement, and they don’t compensate for the harm done or deter against future infringement. The notice-and-takedown system is a constant uphill battle for copyright owners fighting against recurring infringement.

Session 5 – Open Mic

The fifth and final session was an “open mic” opportunity for both members of the public and earlier session participants to make statements that would be added to the record. One stand-out statement came from Janice Pilch, a member of the library faculty and a copyright specialist at Rutgers speaking in her personal capacity.

Pilch described how state entities seem to be concerned about losing sovereign immunity even though they depict a compliance culture and good faith activity. Pilch also described the contradiction between the purported compliance culture of university and library policies that promote broad fair use policies and encourage infringement.

Calzada expanded on her earlier statements of how there is a First Amendment problem when the government uses journalists’ work without their authorization, explaining that journalists have an ethical obligation to not be the mouthpieces of the government; when their work is used to promote a government idea, it results in compelled speech.

Madigan closed out the session by reminding viewers and participants that while state universities claim that abrogating sovereign immunity will ultimately cost the taxpaying public who will have to fund defenses to infringement suits, state universities are massive copyright owners themselves and use public tax dollars to register and enforce their copyrights. It needs to be clear that intellectual property ownership and protection goes both ways.

Next Steps

The Copyright Office has now heard from various stakeholders over the course of two public comment periods and the roundtables. In the months ahead, it will consider the information and evidence presented and analyze the degree to which copyright owners are experiencing infringement by state entities without adequate remedies under state law. The findings of the study will be summarized in a public report due by April 30, 2021, which will make a recommendation to Congress on whether there is a sufficient basis for federal legislation abrogating state sovereign immunity.