In December 2018, Authors Alliance submitted a brief to the Canadian Committee on Industry, Science and Technology in response to a request for public comment. The committee was tasked by Parliament with reviewing Canada’s copyright statutes and issuing a report with recommendations for action and further consideration. Our brief urged the retention of reversionary rights in Canada’s Copyright Act and recommended amendments to the provision to enhance the utility of reversionary rights.

Earlier this month, the Committee on Industry, Science and Technology released its Statutory Review of the Copyright Act. Our brief was cited in the report, and we were pleased to see that the report includes recommendations to expand fair dealing and reversionary rights, which benefit creators who wish to make fair use or to regain rights to their previously published works.

Professor Michael Geist of the University of Ottawa prepared an analysis of the report’s recommendation on fair dealing in a post on his blog (made available under a Creative Commons license), which we have re-posted below. For a deeper dive into the future of the Canadian Copyright Act, we recommend Geist’s summary of the full report.

Fixing Fair Dealing for the Digital Age: What Lies Behind the Copyright Review’s Most Important Recommendation

The long-awaited Canadian copyright review report features numerous good recommendations, many of which were rejections of industry lobbying: a rejection of new restrictions on fair dealing for education, rejection of Bell’s FairPlay site blocking initiative, and rejection of limits on safe harbours in response to the so-called “value gap.” Yet the most notable recommendation is the committee’s support for fair dealing for the digital age by expanding its scope and ensuring that it applies equally in the analog and digital worlds.

I wrote about the need to fix fair dealing for the digital age in May 2018:

there is a need to fix fair dealing by ensuring that it is not hamstrung in the digital environment. The Canadian test for fairness is consistent with those found in other countries, but there are barriers that exist for fair dealing in the digital world that are not found in the analog one. The most obvious example are Canada’s digital lock rules, which exceed the requirements at international law in the WIPO Internet treaties. As many warned five years ago, Canada has created a system that allows for unnecessarily restrictive limits on digital fair dealing. There is a need to fix this problem by establishing an exception within the anti-circumvention rules to allow for circumvention for any lawful purpose.Moreover, the fair dealing purposes should be expanded, ideally by adopting a “such as” approach to its list of enumerated purposes that would ensure the law remains relevant in the face of new innovation. Alternatively, given Canada’s prioritization of artificial intelligence, there is a need for a fair dealing exception for text and data mining similar to that found in many other countries.

The copyright review addresses all three issues. First, the committee recommended adding much needed flexibility by allowing circumvention for purposes otherwise permitted under the Copyright Act:

However, it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti-circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act.

This change will help ensure that fair dealing rights are treated in an equivalent manner in both the analog and digital worlds.

We are grateful to Authors Alliance’s Copyright Research Assistant Kerry Maeve Sheehan for this analysis of the 2019 CASE Act.

The Copyright Alternative in Small Claims Enforcement Act (CASE Act) is back in Congress, and it still has serious problems.

On May 1st, Rep. Doug Collins (R-GA) and Rep. Hakeem Jeffries (D-NY) introduced the latest version of the Copyright Alternative in Small Claims Enforcement Act (CASE Act). Like its predecessor bills in 2016 and 2017, the 2019 CASE Act would establish a copyright small claims tribunal within the United States Copyright Office with the authority to hear and decide some copyright infringement claims.

The bill has a laudable goal: reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. For many independent authors, creators, and users of copyrighted content, copyright litigation in federal court is not worth the candle; the high cost of litigation keeps many independent authors and creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the deeply flawed CASE Act isn’t that. While failing to limit the tribunal’s scope to the types of claims and claimants that it’s best suited to and allowing recovery of excessive damages, the small claims process as set out in the CASE Act would also cause harm to many legitimate users of copyrighted works, including authors, educators, and other creators.

The CASE Act’s small claims process isn’t limited to the problems a small claims court is well-positioned to address.

The CASE Act’s small claims tribunal isn’t limited to those independent authors and creators who need it most.

The copyright holders who most need, and would most benefit, from a small claims process are those independent authors and creators who can’t afford to press their claims in federal court. Unfortunately, instead of limiting the small claims process to those independent copyright holders that really need access to this kind of forum to enforce their copyrights, the CASE Act opens the door widely, welcoming in large corporations, corporate assignees, and entities that buy up others’ copyright claims and profit from litigation.

We’ve already seen how copyright trolls and big content companies have sometimes abused the federal court system to raise questionable infringement accusations and threaten those accused with high statutory damages. By not limiting enforcement through the small claims process to individual creators, the CASE Act makes it even easier for these entities to get quick default judgments and disproportionately high damages awards. Absent enough protections for accused infringers and reasonable limits on damages, the CASE Act would invite more abusive litigation tactics by copyright trolls and opportunistic claimants while cluttering up the docket with cases that should be resolved elsewhere.

The CASE Act’s small claims tribunal’s jurisdiction is far too broad.

Some areas of copyright law are just too complicated, fact specific, and unsettled to be decided by a small claims process. The CASE Act tribunal’s accelerated process and limited discovery mean that it’s really only equipped to handle simple, straightforward infringement claims in settled areas of law. But the CASE Act doesn’t draw the line there. Instead, the tribunal has expansive authority to hear all types of copyright infringement claims including those that involve highly complex issues and uncertain areas of law. These complicated cases belong in a federal court with the expertise and resources to more competently address all the factual and legal issues involved. Leaving these cases with the small claims tribunal hurts both those authors trying to enforce their copyrights and those trying to defend their rights to use copyrighted works, as the tribunal won’t be able to adequately resolve the issues involved.

While the CASE Act does include a provision allowing the tribunal to dismiss a claim or defense if the tribunal decides it’s not suitable, without a clear limitation on the tribunal’s jurisdiction, it’s hard to see how it would make consistent decisions to do so.

The CASE Act would create new opportunities for abusive litigation tactics.

The CASE Act’s “default judgment mill” favors sophisticated actors over independent authors and creators.

The CASE Act’s opt-out provision doesn’t provide independent authors (whether claimants or defendants) enough protection. Under the CASE Act, if someone accused of infringement fails to opt-out of the small claims process within 60 days of receiving notice of the claim, the small claims tribunal can enter a default judgment in favor of the claimant and award her damages. This judgment can then be enforced by the claimant in federal court. While this opt-out procedure is supposed to provide some protection for the accused, there’s a strong likelihood that authors, educators, and small creators without sophisticated legal knowledge or representation may not fully understand the implications and may ignore the notice – ending up on the hook for substantial damages awards without a meaningful opportunity to appeal. This quick and easy way to obtain default judgments is likely to create a “default judgment mill,” where big content companies and copyright trolls can churn out a mass of default judgments and high damages awards against unsophisticated individuals.

The CASE Act’s statutory damages framework invites abuse.

There may be a role for a reasonably statutory small framework in a small claims tribunal when damages from infringement are difficult or impossible to prove. However, while substantially lower than the statutory damages available in federal court, the CASE Act’s statutory damages are still excessively high and are available in all cases. Under the CASE Act, claimants who timely registered their works can request up to $15,000 per work infringed, with a total limit of $30,000 per proceeding. Those who failed to timely register their works can request up to $7,500 per work infringed, with a limit of $15,000 per proceeding. As copyright law experts have pointed out, in federal court, the availability of excessive statutory damages has made it easy for unscrupulous plaintiffs to intimidate and extract settlements from individuals accused of infringement. Faced with the risk of a high statutory award, many defendants opt to settle, even when they have a valid defense. And without standards to guide those awards, copyright litigation is an unpredictable venture. With lower barriers for plaintiffs and a disproportionate statutory damages framework, the CASE Act could make these problems even worse.

As concerned scholars have noted, The CASE Act’s statutory damages framework won’t just harm defendants, though. It will also create an incentive for sophisticated or well-resourced defendants to strategically opt out of the small claims process when they think the claimant won’t be able to pursue her claim in federal court. This would undermine the CASE Act’s core objective, returning independent authors and creators to today’s unsatisfactory status quo.

Would the CASE Act tribunal be a fair one?

The CASE Act’s limitations on appeal make it unduly difficult for parties to get meaningful independent review of tribunal decisions.

Independent judicial review is essential to ensuring that any tribunal operates fairly and arrives at the correct result. The CASE Act, however, narrowly restricts the ability of either party to seek review of the tribunal’s decisions in federal court. Under the CASE Act, parties can ask the tribunal to reconsider a determination, and, with an additional fee, parties can ask the Register to review the tribunal’s refusal to reconsider on abuse of discretion grounds. Independent review by a court is only available in on the grounds of “fraud, corruption, misrepresentation, or other misconduct,” or if the tribunal exceeded its authority or failed to render a final decision. Default judgments are only reviewable on grounds of excusable neglect. By restricting the grounds for appeal, the CASE Act would leave erroneous tribunal decisions essentially unreviewable and unjustly wronged parties with no where to turn for relief.

The Copyright Office probably isn’t the right place for a copyright small claims court.

A tribunal within the copyright office, designed to serve copyright claimants, and with officers selected and recommended by the Register of Copyrights may end up friendlier towards copyright claimants, and less receptive to arguments that a contested use is legitimate or qualifies as fair use. In concert with the limitations on appeal of tribunal decisions, this could create a forum inclined to issue more favorable judgments for big content companies and other copyright claimants, and in the process, harm those authors, educators, and creators defending their right to use copyrighted works.

Authors Alliance founder and law professor Pamela Samuelson points out that placing the tribunal within the Copyright Office could also run afoul of the United States Constitution. The United States Supreme Court has repeatedly stated that infringement claims belong in the federal courts. Placing some copyright infringement claims in an administrative forum may be unconstitutional under Supreme Court precedent.      

Authors Deserve Better Than the CASE Act.

Independent authors and creators should have access to a low cost way to enforce their copyrights and vindicate their right to use others’ copyrighted works. We support a fair, unbiased small claims process that doesn’t invite abuse and wreak havoc on copyright law. If Congress is serious about fixing Copyright’s small claims problem, it needs to do better than the CASE Act. It can start by listening to the numerous educators, scholars, librarians, technologists, lawyers, and public interest policy experts who’ve all pointed out the Act’s problems. If you want to learn more about the CASE Act, check out this paper by Authors Alliance founder Pamela Samuelson and Kathy Hashimoto, and this one by law professor Ben Depoorter.

We thank Jason Mazzone, the Albert E. Jenner, Jr. Professor of Law at the University of Illinois at Urbana-Champaign, for contributing this guest post.

Copyfraud—false claims of copyright in public domain works—is a persistent problem. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership.

These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use. Copyfraud also interferes with lawful distribution of public domain works.

Increasingly, computer bots are responsible. When Scribd users posted the recent Mueller report—a federal government document that cannot be copyrighted by anyone—the website’s filters flagged the report as copyrighted and took it down.   

There are few available remedies for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Copyright Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Copyright Act, prosecutions are extremely rare.

A class action lawsuit filed in federal court in Washington now targets Getty Images for selling licenses to images that are in the public domain. The lawsuit alleges that Getty falsely asserts copyrights in public domain images and misleads consumers into believing they must purchase a license from Getty before making use of the images—and that Getty threatens legal action against unauthorized uses of the images it makes available in its database. The lawsuit against Getty asserts claims based on wire fraud under the federal RICO statute and violations of state consumer protection law.

This is new territory and at this early stage of the case it is difficult to assess the likelihood the lawsuit will succeed. Getty is likely to assert that it simply collects images and makes them conveniently available in high-resolution versions and in so doing it does not violate any law. At a minimum, in order to demonstrate fraud, the plaintiffs will need to demonstrate that Getty intentionally misled them into believing it owned copyrights in images and that as a result the plaintiffs paid out an unnecessary copyright licensing fee. Even so, the court might find that there is no legal remedy because Congress did not provide for one in the Copyright Act itself. 

I first wrote about copyfraud more than a decade ago in an article published in the NYU Law Review and then in a book, Copyfraud And Other Abuses of Intellectual Property Law (Stanford University Press, 2011). Since then, awareness of the problem has grown. Remedying copyfraud, however, remains a challenge. The lawsuit against Getty might help clarify when existing law provides tools for protecting the public domain. More likely, however, is that the outcome of the case will shed further light on the need for comprehensive reform if copyright is to be kept within its proper limits.