You may have heard that 2016 was an election year in
the United States. Congress and life go on, and Representatives Judy Chu (CA-27)
and Lamar Smith (TX-21) introduced this month a bill, the Fairness
for American Small Creators Act, which would amend the Copyright Act to
introduce a Copyright Claims Board (the Board). The press release is here.
The Board would be established within the Copyright
Office and would be an alternative forum to resolve some, but not all, copyright
claims (collective sigh of relief from IP attorneys).
Three
Copyright Claims Officers
Three full-time copyright claims officers would serve
on the board for a six-year term. They would all be attorneys with at least
seven years of legal experience. Two of the copyright claims officers would “have
substantial experience in the evaluation, litigation, or adjudication of
copyright infringement claims and, between them, … have represented or presided
over a diversity of copyright interests, including those of both owners and
users of copyrighted works. The third copyright claims officer [would] have
substantial experience in the field of alternative dispute resolution.”
They would be independent from the Register of
Copyrights, but could consult it on general issues of law, but not with respect
to the facts of any particular matter pending before the Board or the
application of law to a particular matter. The Board’s decisions could be
reviewed by a court.
Copyright
Claims Attorneys
No less than two attorneys would be appointed by the
Register of Copyrights to assist in the administration of the board. They would
have to have at least three years of copyright law experience.
Authority
and Responsibilities of the Copyright Claims Board
The Board would determine whether a particular
copyright claim, counterclaim, and defense could be brought before the Board,
and would ensure that they are “properly filed and otherwise appropriate for
resolution by the Board.” The Board would manage the proceedings of the Board and
render rulings relating to the consideration of these claims, which would
include scheduling and discovery. Indeed, the Board would have the power to request
the production of information and documents relevant to the resolution of a
claim, and to conduct hearings and conferences. The Board would also have the
power to facilitate the settlement of any claim or counterclaim of parties and
to require cessation or mitigation of an infringing activity, including
takedown or destruction of infringing materials, but only if the party asked to
do so agrees.
Authority
and Responsibilities of the Copyright Claims Attorneys
Copyright Claim Attorneys would have to provide
assistance to the copyright claims officers in the administration of their
duties, and provide assistance to members of the public with respect to the
procedures and requirements of the Board.
Proceedings
Parties would only participate in a Board proceeding
on a voluntary basis and the right of any party to pursue a claim in any court
of law would be preserved. The claim would have to be filed no more than three
years “after the claim that is the basis for the proceeding accrued.” The Board
could review claims for infringement, or provide a declaration of
non-infringement, unless the claim is already pending before, or finally
adjudicated by a court of law. Both parties would have to be in the U.S. The
Board could award actual damages and limited statutory damages, but the latter
could not exceed $15,000 per work infringed.
This would be a centralized process, as the Board would
conduct proceedings “by means of Internet-based applications and other
telecommunications facilities, except that in any case involving physical or other
nontestimonial evidence, the Board may make alternative arrangements for the submission
of evidence if the arrangements do not prejudice another party to the
proceeding.”
The parties could be represented before the Board by
an attorney or law student who is qualified under applicable law to represent a
party on a pro bono basis.
It is an interesting proposal, especially as the whole
procedure could be conducted electronically. Allowing qualified law-students to
represent parties may, however, have a somewhat limited impact on the ability
of parties to seek pro bono counsel, as U.S. states typically require law
students representing parties pro bono to be supervised by a faculty member or
a practicing attorney.
Image courtesy of Flickr user Michael Coghlan under a CC BY-SA 2.0 license.
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