The Copyright Act protects many works that may not have great commercial value. When a copyrighted work, like a photograph, is used without permission, there is often not a significant amount of economic damage to the copyright owner, and the costs of bringing a lawsuit against the infringer may actually dissuade them from filing a lawsuit. Imagine someone takes one of your Facebook photos and uses it on her personal website without your permission. Your copyright in that photo has been infringed, but what are you going to do about it? In the real world, this type of infringement usually does not lead to a full-blown lawsuit. You don’t have the time, you don’t have the money to invest in litigation, no attorney is going to take this kind of case on contingency, and the reality is that your exclusive right to own your photo probably doesn’t mean that much to you unless you’re a professional photographer.
What are the issues related to enforcing copyright, and what are the proposed solutions?
Challenges in Enforcing Your Rights
Currently, if you want to bring an infringement suit to defend your copyright, the only way you can do so is through Federal district courts. Copyright law is Federal law, and by statute, is only allowed to be litigated through the Federal judicial system. The cost of litigation is prohibitive in most cases – tens of thousands of dollars or more if the case ends up going to trial. In some cases (for example, where there is a valid and timely copyright registration in place for the infringed work), attorney’s fees can be recovered from the infringer, but they won’t be awarded until the end of the judicial process – if they can be recovered at all (the defendant has to have money in order for you to recover it). The time commitment can be a further deterrent, as most cases take an average of 23 months to complete. The bottom line is there isn’t much incentive for copyright owners to litigate their small copyright claims.
This problem has not gone unnoticed. In 2006, there was a small claims hearing by the U.S. House of Representatives’ Subcommittee on Courts, the Internet, and Intellectual Property, looking for some sort of alternative dispute resolution to the problem of small claim deterrence. On October 11 of this year, Chairman of the House Judiciary Committee asked the U.S. Copyright Office to commission a study to assess the following two issues:
1) The extent to which copyright owners are effectively prevented from obtaining relief from infringements due to constraints in the current system, and;
2) To generate specific recommendations for changes in the copyright system that will improve the adjudication of small copyright claims and enable all copyright owners to exercise their exclusive rights.
In order to comply with this request, the U.S. Copyright Office has set up a website, http://www.copyright.gov/docs/smallclaims, asking copyright owners to provide their input on constraints in the current system and recommendations for changes in the copyright system.
Copyright Small Claims Court?
One of the most commonly suggested recommendations is creating a Federal “small claims court,” which could alleviate many of the cost and time problems for small copyright claims. However, even if this is a step in the right direction, it leads to many questions. Would there be one or several small claims court/panels? What claims are “small” enough to qualify? How could one appeal an adverse decision? What types of remedies would be offered if a violation is found?
Other possible alternatives that have been suggested to handle small copyright claims include:
- Using the current Copyright Royalty Board to handle small copyright claims. The Copyright Royalty Board sets rates and terms for statutory licenses and decides how to distribute certain statutory license royalties.
- Developing a staff of dedicated administrative law judges to specialize in small copyright claims to make the process more accessible, faster, and less costly.
- Amending the Copyright Act to allow state courts and their small claim courts hear small copyright claims. This poses a problem, however, as state courts are not experienced in copyright law and may not have the resources to devote to complicated copyright claims.
- Allowing trade associations or other group representatives bring a single large filing on behalf of a sizeable group of small copyright owners.
There may not be a perfect, one-size-fits-all solution out there, but I’m glad to see that Congress is taking this issue seriously and at least trying to come up with an alternative to the current broken system. If copyrights were easier to enforce, there would be much less incentive for them to be violated. This would, in theory at least, incentivize creators to keep generating new works – a priority that is right there in Article I of the U.S. Constitution.
