As the ongoing copyright reform process before the House Judiciary Committee moves to an important new stage, ASMP believes it is critical that members have a clear understanding of that process and the role our organization is playing in protecting the interests of small creators. I recently sat down with ASMP Executive Director Tom Kennedy and ASMP’S outside counsel Mike Klipper to get their perspective on what this really means for photographers and other visual artists and what we can expect of the new Congress.
The overriding message from Kennedy and Klipper is clear: we are at a critical juncture in the copyright reform process and our members must be informed and prepared to act. While our conversation focused primarily on the quest for a small claims copyright system, we also discussed ongoing efforts to modernize the Copyright Office and the naming of a new Register of Copyrights.
Setting the table for Small Claims
In 2011, then Chairman of House Judiciary Committee, Lamar Smith (R-TX), called for the Register of Copyright to study the difficulties that small creators were having in protecting their works in the digital age. The study kicked off a multi-year process aimed at ensuring that small creators have both rights and remedies under the copyright law. Here’s a breakdown of the major milestones:
- 2011-2013: In response to Smith’s request, the Copyright Office studies the efficacy of the protections afforded small creators under current law and receives dozens of public comments from interested parties, including ASMP
- 2013: Small claims report issued by report issued by US Copyright Office followed by a speech given by then Register of Copyrights Maria Pallante outlining the problems need for a comprehensive review of the 1976 Copyright Act, including how the act treats small creators
- 2013: Representative Bob Goodlatte (R-VA), new chairman of the House Judiciary Committee, announces Committee will conduct the first comprehensive review of the copyright in decades
- 2013-2016: The public hearing phase is conducted and included twenty different hearings and over one hundred witnesses. Eugene Mopsik, former executive director of ASMP, testified during the process
- 2015: At the request of Chairman Goodlatte, Tom Kennedy organized a panel of photographers, including ASMP members, to speak before several members of the Committee in Los Angeles. The purpose was to highlight the special challenges facing photographers in protecting their creative works from infringement. “Chairman Goodlatte has commented on how valuable this forum was in informing the Committee’s thinking on copyright issues relating to photographers” said Kennedy.
- 2015: ASMP was primary author of a White Paper submitted to the House Judiciary Committee by several visual artists group in which it outlined the purposes and key components of an effective small claims process
The Jeffries and Chu Small Claims Bills
In the recently completed 114th Congress, two bills creating a small claims board within the Copyright Office were introduced. The first, HR 5757, was introduced by Representatives Hakeem Jeffries (D-NY) and Tom Marino (R-PA) in July 2016. The second, HR 6496, was dropped in by Representatives Judy Chu (D-CA) and Lamar Smith (R-TX) in December 2016. Both bills are based largely on recommendations made by the Copyright Office in its 2013 report. It is anticipated that these representatives will reintroduce their own small claims bills in the new Congress and that each bill will continue to provide:
- A straightforward legal process that is a far less expensive and cumbersome one than the only option available today: filing a copyright infringement suit in federal court. The expense of bringing an infringement case is far beyond the reach of most visual artists as the cost of litigating a copyright case through appeal averages $350,000.
- Small Claims are limited to $30,000. The board can hear damage claims of up to $30,000. This should accommodate most infringement suits brought by visual artists whose claims typically range from $750 to $5,000.
- No in-person requirement to appear. Small creators don’t have the ability to prepare for or attend lengthy trials to resolve conflicts. The Jeffries and Chu bills do not require parties to appear in person before the board in DC. “It’s not inconceivable that simpler cases could be resolved with a paper filing” says Klipper.
- Participation in the small claims process is voluntary. Due to constitutional considerations, it is necessary that the system be voluntary. Those who receive notice of a copyright small claims action would be free to decide whether to have case, or whether they would prefer to confront the claim in federal court.
- Attorneys are voluntary. Small creators often don’t have the resources to hire attorneys to represent them in court. At the same time, legal support can be critical in litigating copyright claims. The Jeffries and Chu bills opt for a voluntary approach where a party is free to have counsel represent its interest if it chooses. The bills also allow for law students under the supervision of an attorney to represent parties before the board on a pro bono basis. This provision could be a real boon to small creators who cannot afford to retain counsel. “ASMP is working closely with the legal clinic at Antonin Scalia Law School of George Mason University and expect if this provision is enacted, this clinic and others around the country will help small creators represent their interests before the small claims board,” said Kennedy.
- Discovery is limited. The discovery process would be far less complicated than in federal court and will help keep costs down and allows the cases before the board to move reasonably quickly.
- Three Adjudicators. There will be three full-time adjudicators devoted to reviewing cases before the board.
What to Expect in the New Congress
It was earlier noted that Chu and Jeffries are expected to reintroduce their respective bills in the 115th Congress. But the focus on small claims (as well as other key issues relating to the future of the Copyright Office) is far more likely to shift. In the closing days of the last Congress, Chairman Goodlatte and senior Democrat on the Committee, John Conyers (D-MI), issued the first of what they promise will be a number of copyright policy proposals. This first proposal addresses issues pertaining to the independence and modernization of the Copyright Office—including the manner in which the new Register is chosen. It also calls for a legislative approach that adopts a small claims process consistent with that advocated by the Copyright Office, Jeffries, and Chu. ASMP along with other visual artist groups will be filing comments on all these issues with Goodlatte and Conyers by the end of January. Below is the gist of the issues that ASMP and others will comment on:
With regard to small claims, ASMP can foresee these issues being addressed by the new Congress, and the ASMP perspective is included:
- Incentives. Given that the system is voluntary, it is essential that the bill contain incentives to encourage alleged “infringers” to participate in the small claims process and not opt out which would send the case to federal court.
- Funding. ASMP will fight hard to make certain that the costs of participating in small claims process are not prohibitive for small creators.
- Expedited Registration. Given that it takes many months for the Copyright Office to issue registration certificates, ASMP will urge the Committee to adopt an expedited, affordable registration process for creators who have not registered their works previously.
- Fast Track. Speedy adjudication of claims before the board is of critical importance. Thus, ASMP will urge the Committee to give the Copyright Office the power to set up special rules for claims of $5,000 or less to allow such claims to be addressed with alacrity.
- Dealing with Non-Cooperative Defendants. It is of great importance that a losing defendant before the board not have the ability to ignore judgments against it with impunity. ASMP will push for statutory language that allows claimants to go to a convenient federal court to seek enforcement of a judgment, and make any non-cooperative defendant pay for costs incurred by the claimant.
Copyright Reform and Modernization
With regard to copyright reform and modernization in the new Congress, Kennedy and Klipper emphasized that while small claims reform is a critical part of the ASMP agenda, ASMP advocacy efforts in DC must extend to other copyright issues that are under review by Congress. They listed a number of issues that ASMP must confront and address in its January 31 comments to the House Judiciary Committee, including:
- Should Register of Copyrights be Appointed by the President and subject to Senate confirmation instead of the current system that gives the appointment authority to the Librarian of Congress?
- How should the Copyright Office be modernized to meet the demands of a digital world? This needs to include registration and deposit procedures.
- Should the Copyright Office be Granted Independence over its budget and its information technology activities?
What ASMP Members Need to Do
With respect to small claims, Klipper noted that “this is the first time that I recall in my forty years of working on copyright issues that photographers and other visual artists are the primary beneficiaries of a piece of copyright legislation. Thus, we are presented with a rare opportunity to see legislation enacted that directly affects the livelihood of these and other small creators.” Kennedy added “that the passage of a small claims bill will not become law unless all small creators around the country weigh in with the senators and representatives. We’ve made real progress, but the next two years will help determine if legislative victory will become a reality.”
Turning to the issue of selection of a new Register, Kennedy expressed great regret over the untimely and unfortunate removal of Maria Pallante as Register of Copyrights. He emphasized how important it was that Pallante’s replacement be sensitive to special needs of small creators, and like Pallante and her predecessors, be committed to a strong Copyright office and a vibrant copyright system. “I want to remind ASMP members to participate in the survey issued by the Librarian with respect to the qualifications of the new Register” said Kennedy. He went on to express concern that “the Librarian would rely on such an unscientific method that could easily skew the results in favor of those harboring anti-copyright sentiments. The Librarian’s actions left ASMP members and others in the copyright community no choice but to participate fully in the survey process.”
Here’s where ASMP members can particpate in the survey being conducted by the Library of Congress.