Date of this Version
United States Copyright Office, Copyright Small Claims. a report of the register of copyrights September 2013
It appears beyond dispute that under the current federal system small copyright claimants face formidable challenges in seeking to enforce the exclusive rights to which they are entitled. The Copyright Office therefore recommends that Congress consider the creation of an alternative forum that will enable copyright owners to pursue small infringement matters and related claims arising under the Copyright Act. In light of the state court tradition of referring to claims of modest economic value as “small claims,” many have adopted that term to reference the nature of the claims that are the focus of this Report, as does the Report itself. Such claims, however, are not small to the individual creators who are deprived of income or opportunity due to the misuse of their works, and the problem of addressing lower-value infringements is not a small one for our copyright system. But how would we structure an alternative process? Concerns of pragmatism and efficiency are core considerations, but they are not the only ones, and they must be viewed in the larger context of federal powers. Our Constitution protects both the role of the federal judiciary and the rights of those who participate in adjudicatory proceedings. These principles are enshrined in Article III and the Fifth and Seventh Amendments, and in judicial interpretations of these and other constitutional provisions. Any alternative process must fit comfortably within the constitutional parameters. In light of the existing constitutional landscape, the challenges of the current system, and the views and insights of those who participated in this study, it appears that the most promising option to address small copyright claims would be a streamlined adjudication process in which parties would participate by consent. Perhaps not surprisingly, a number of the commenting parties viewed the Copyright Office as the logical and appropriate home for such a small claims system. In recent years, many have emphasized the potential of voluntary solutions to certain problems of copyright enforcement.11 In this case, a voluntary approach necessarily will fall short of a full-fledged judicial process, offering the complete panoply of copyright remedies, to which small copyright claimants could turn reliably and affordably to pursue infringers. Such a process is what our legal system would provide in an ideal world. But in the real world of constitutional and institutional limitations, a voluntary system with strong incentives for participation on both sides seems more attainable, at least in the near term. Importantly, such a voluntary approach would retain a mandatory backstop; parties who declined to consent to the alternative small claims proceeding could still be summoned to federal district court by a claimant who was able to take that path.