Small step for copyright, giant step for creators — The CASE Act

“Think Small.” That’s the 2018 rallying call for hundreds of thousands of professional creators and small business owners across the U.S. who rely on copyright to earn a living, but who have been neglected by a copyright system that gives them rights but no effective means for enforcing those rights. These creators are now lining up in droves to support a bipartisan bill introduced by Reps. Hakeem Jeffries (D-N.Y.) and Tom Marino (R-Pa.) called the Copyright Alternative in Small-Claims Enforcement Act of 2017 (the CASE Act), H.R. 3945, which would address this problem by creating a streamlined process for small copyright claims to be heard by a three-judge board within the U.S. Copyright Office.

The CASE Act is based on legislative recommendations from the U.S. Copyright Office following numerous public hearings and comment periods. And it’s now a legislative priority for a vast number of photographers, illustrators, graphic artists, songwriters, and authors, as well as a new generation of creators including bloggers and YouTubers.

{mosads}The fundamental problem addressed by the CASE Act is that, because federal courts have exclusive jurisdiction over copyright claims and federal litigation so expensive and complex, most creators and small businesses simply can’t afford to enforce their rights. The American Intellectual Property Law Association estimates that the cost of litigating through the appeals process averages $350,000. To make matters worse, according to a survey by the American Bar Association, most attorneys won’t consider taking a case if the amount at stake is less than $30,000, and federal litigation is much too complicated for any creator to undertake without the assistance of counsel. As a result, infringements regularly go unchallenged and many creators feel disenfranchised by the copyright system.

Visual artists, authors, songwriters and small businesses are hurt most by the high cost of federal litigation because the individual value of their work is often too low to warrant the expense of litigation. While these financial losses may seem modest, all too often such sums represent a significant and devastating loss of income, especially since many creators experience multiple infringements. Their losses could have covered business operating expenses, medical insurance premiums, car payments, rent and living expenses, or the cost of travel to a location where an author will research his next book or where a photographer will capture her next photo project.

The CASE Act is a modest attempt to rectify such problems by creating a fair and balanced process for creators to address their infringement problems. One of the most important features of the bill is that it’s 100 percent voluntary. If a party doesn’t want to initiate or defend a copyright case before the board, it can opt not to participate in the process.

Further, in contrast to federal court litigation, the CASE Act dramatically limits an alleged infringer’s financial exposure by capping potential damages and insulating them from attorney fee awards (unless they act in bad faith). For instance, the bill caps statutory damages at $15,000 per work and $30,000 total, which is significantly less than what is permitted in federal court.

To ensure balance, the board can hear claims by both creators and users and stipulates that the board’s judges be appointed and removable by the Librarian of Congress, that they have experience representing or presiding over the copyright interests of both owners and users of copyrighted works, and that they follow judicial precedent when deciding cases.

Passage of the CASE Act would not necessarily mean there will be an increase in copyright litigation. Because individual creators and small businesses would be on a more level playing field with infringers, we may see less infringement and more settlements. This was the case in the UK, where out-of-court settlements increased after small claims legislation was enacted.

In sum, the CASE Act isn’t just good for copyright owners. It’s good for all participants in the copyright system. And that’s no small achievement.

Keith Kupferschmid is CEO of Copyright Alliance.