Today the Department of Commerce Internet Policy Task Force (which includes the USPTO) released its long anticipated white paper on “Remixes, First Sale, and Statutory Damages–Copyright Policy, Creativity, and Innovation in the Digital Economy.” Among its findings is support for a copyright small claims process to adjudicate infringement claims. The Copyright Alliance issued a press release summarizing the report:
Remixes: The IPTF found that there was an insufficient record to support the creation of a compulsory license or a new exception for remixes uses and therefore rejected both ideas. The IPTF did recommend three goals to make it easier for remixers to understand when a remix use qualified as fair use and when a license was necessary.The IPTF found that there was an insufficient record to support the creation of a compulsory license or a new exception for remixes uses and therefore rejected both ideas. The IPTF did recommend three goals to make it easier for remixers to understand when a remix use qualified as fair use and when a license was necessary.
First Sale: The IPTF recommended that there be no changes to the first sale defense in section 109 of the Copyright Act.
Statutory Damages: Statutory Damages is the area where the White Paper suggests the most change. The Paper recommends three changes to the Copyright Act:
• Including a list of factors for courts and juries to consider when determining statutory damage awards;
• Expanding the innocent infringer standard to allow its application even when there is a copyright notice on the work; and
• Allowing courts to award damages on something less than a per-work basis in the case of online services offering large numbers of works.
Momentum for copyright small claims process is growing
Last, but certainly not least, the paper’s finding support a Copyright Office proposal issued in September of 2013 for creating a small claims process to adjudicate copyright claims outside the federal court system. This is particularly good news for independent filmmakers, musicians, authors, and the like who don’t have the deep pockets required to legally enforce a copyright claim. From page 99 of the white paper:
…the Task Force supports the creation of a streamlined procedure for adjudicating small claims of copyright infringement and believes that further consideration should be given to the proposal of the Copyright Office to create a small claims tribunal.581 The proposal would provide for a cap on awards of statutory and actual damages, limited discovery and counterclaims, assertion of all relevant defenses (including fair use), optional attorney representation, and awards of costs and fees against frivolous litigants.582 Among other features of the system suggested by the Copyright Office, participation in small claims proceedings would be voluntary and would be administered by a centralized tribunal in a single location.583 One recommendation of particular relevance to our review here is that the Copyright Office proposal would cap statutory damages awards on both a per work and per case basis.
I wrote about the need for some type of copyright small claims “court” last spring when Richard Prince* ripped-off Instagram artists, Instagram rip-offs by Richard Prince show why we need a small claims copyright court now. At the time I noted:
…establishing a small claims court where copyright claims could be heard would at least level the playing field a bit. Small creators would not have to sit idly as skunks like Richard Prince co-opt their work and make money at their expense. Obviously damages are limited in small claims court, but at least those whose work is stolen could seek redress and perhaps, collectively, turn the tide against this type of chronic theft.
This white paper is good news for the creative community as it appears that we may finally see real progress toward a viable copyright small claims process that would give indie artists a fighting change to defend their work from online opportunists.
“…in crafting copyright policy, we recognize that all interested parties must work together – including creative sectors, technology sectors, user groups and the public – as partners toward the same goal; and our collective goal is a thriving internet ecosystem that incentivizes creators to produce and disseminate new works to the public…
*I should note that the aforementioned Richard Prince is currently being sued copyright infringement in federal court by Donald Graham, an Instagram photographer. Graham filed suit on December 30th of last year.