The BIG Deal About Copyright Small Claims

On September 21st, the Copyright Society of the USA, the Congressional Caucus on Intellectual Property Promotion and Piracy Prevention, and the Copyright Alliance co-sponsored The Big Deal About Copyright Small Claims — a discussion on the role of a small claims process as a possible alternative for certain types of copyright litigation. The event took place on Capitol Hill and featured speakers representing various players across the copyright community, including creators, publishers, law professors, and even lawmakers.

Representatives Judy Chu (D-CA) and Hakeem Jeffries (D-NY) delivered the opening remarks. Both lawmakers highlighted a few key points: (1) protecting intellectual property is a bipartisan issue and (2) “middle class” creators rely on copyright to protect their work and to earn a living, but (3) the current legal framework leaves individual creators, who often lack the financial resources to sue in federal court, devoid of an effective remedy for infringement. The solution? In July, Rep. Jeffries, along with Rep. Tom Marino (R-PA) introduced H.R. 5757, the Copyright Alternative in Small-Claims Enforcement Act of 2016, which proposes, as an alternative to federal court, a voluntary small claims process where damages would be capped at $30,000. Rep. Chu said in her remarks that she is also working on legislation and hopes to share draft language in the near future.

Both Representatives are drawing on the recommendations of the US Copyright Office, which studied the issue carefully and engaged in thorough public input before releasing a report on Copyright Small Claims in 2013. A key component of both the Copyright Office’s recommendations and the draft legislation is that the small claims process would be entirely voluntary, meaning that would-be defendants get to decide whether they want to participate in the suit. The process would limit what types of claims could be heard, streamline discovery, and cap damages at $30,000. Parties would be able to participate in proceedings via the internet. And finally, the small claims process would be a simple enough system that creators could enforce their rights without needing to hire an attorney.

“Small creators” — explained Tom Kennedy, Executive Director of the American Society of Media Photographers (ASMP) — “have rights, but no effective remedy.” This idea, that individual creators need an affordable alternative to federal court, became a recurring theme throughout the discussion. Sandra Aistars, Clinical Professor at George Mason University School of Law, noted that an inability to access courts means a lack of enforcement, and a lack of enforcement leads to a dual misperception: (1) that it’s okay to take others’ work without permission and (2) that copyright law serves only large, corporate interests.

Rick Carnes, a songwriter out of Nashville and President of the Songwriters Guild of America, has had plenty of experience with the misperception that creative works are free for the taking. He explained that although it’s frustrating to see his work constantly infringed online, the cost and complexity of litigation under the current system “just doesn’t work” for individual artists like himself. He believes that “a simplified system that will solve these problems is in everybody’s best interest.”

A representative from the publishing community said that a small claims process is a benefit not only to creators, but to publishers as well. Yvonne Bennett, VP of Business & Legal Affairs at National Geographic, discussed the special relationship that publishers and creators share. Particularly at National Geographic, where the company’s relationship with its contributing photographers, writers, and illustrators is ongoing, making sure that creators are compensated appropriately is a top priority. The streamlined process that a small claims process would provide allows disputes to be resolved quickly and efficiently, and encourages publishers and creators to work together.

Nancy Wolff, partner at Cowan, DeBaets, Abrahams & Sheppard, added that in the UK, which has its own copyright small claims system, the process gets used less than one might think. Why? The easier it is for creators to protect their work, the more careful people are about how they use others’ content, and the simple fact that such a streamlined process exists encourages parties on both sides to come to an agreement.

All panelists thanked Representatives Chu and Jeffries for the attention they have devoted to providing individual creators with access to effective remedies and expressed hope that Congress ultimately passes legislation creating a small claims process. These hopes may eventually come to fruition as there has been tremendous support for the concept of a small claims process and the few concerns that have been raised relate more to implementation details, location of the small claims tribunal and how to fund it.

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