The end of a Congressional year is met with typical threats of a government shutdown if the following year’s budget is not authorized. News headlines seem to cry that if legislators do not come to an agreement, a government shutdown will cause great distress. The end of 2020 seemed to have more stress than other years due to the addition of the Covid relief bill. The media was so focused at the end of 2020 on the Covid relief legislation that it sometimes appeared to be the only legislative issue that Congress was working on. The legislation passed was a massive multi trillion-dollar bill. Not surprisingly, such massive bills, especially at the end of the year, often contain “surprises” and many bills (not related to Covid) are passed without much notice, input or deliberation.
Officially, the legislation passed at the end of 2020 was called the “Consolidated Appropriations Act, 2021” which we will refer to as the “Act.” In the Act, there were three significant laws passed relating to intellectual property, one related to trademarks and two related to copyrights. This legislation affected trademarks and copyrights in a significant manner. We will devote this article to one of the changes in the copyright law since we believe it will have a significant impact on small business and individual copyright owners.
Most copyright claims do not involve significant sums, nor do the litigants have the financial wherewithal for federal civil court litigation.”
There’s a New Sheriff in Town
The official bureaucratic name of this change in the copyright law is the “Copyright Alternative in Small Claims Enforcement Act”, which of course has its own acronym: the CASE Act. The underlying bill of the CASE Act was introduced in 2016, and both the House of Representatives and the Senate passed versions of the bill in 2019. However, it then sat dormant until it was swept up in the Act that was passed on December 27th, 2020. A primary feature of the CASE Act is the formation within the U.S. Copyright Office of an administrative tribunal, the Copyright Claims Board (CCB), to settle copyright infringement claims. The CCB must be established within one year of enactment. Thus, the CCB is scheduled to be formed and in place by December 27th, 2021. So, it’s not there yet!
Significance?
Why is this significant? Most copyright claims do not involve significant sums, nor do the litigants have the financial wherewithal for federal civil court litigation. The CASE Act establishes a small claims court type system within the U.S. Copyright Office for copyright owners seeking damages under $30,000 for copyright violations.
There are supporters and critics of the establishment of the CCB. Supporters claim it will make it easier for independent artists to enforce their rights and combat infringement. Presently, if the claim is not substantial, litigation in federal court is not financially tenable. Detractors argue that this tribunal will open up copyright trolling.
Word to the Wise – Registration!
The work being infringed must be registered to qualify for CCB determination. Federal copyright registration is relatively inexpensive and easy. Clients should identify their important creative works and register those with the U.S. Copyright Office.
Another important feature of the CCB is that the Federal Rules of Evidence will not be used. This will simplify the proceeding for participants. However, the determination by the CCB can be challenged in federal district court. Also, a filing with the CCB will stay a federal district court proceeding.
Trolls Beware
The CASE Act also provides that the CCB may limit the number of cases a person can bring in a single year. However, many still fear that in the initial year of the CCB’s existence, many individuals may bring actions against companies. To combat this possibility, recall that copyright registration within five years of first publication creates a legal presumption of ownership and validity. Thus, registration may also become a defensive mechanism.
The takeaway here is that copyright registration is more important than ever, both from an offensive standpoint and a defensive standpoint. Owners should ensure that their important works are registered.
