What is the CASE Act?
The Copyright Alternative in Small-Claims Enforcement Act of 2020, or CASE Act, was signed into law on December 27, 2020. It is part of the Consolidated Appropriations Act, 2021, also known as the COVID-19 Relief/Stimulus Package.
The CASE Act creates a Copyright Claims Board under the auspices of the Copyright Office and is intended to provide an alternative, straight-forward, cost-effective system for copyright holders—small businesses, creative professionals, and entrepreneurs—to seek relief for the type of copyright infringements that have become all too common today.
The CASE Act is designed to avoid costly copyright litigation, finally giving creators with small infringement claims an accessible remedy to enforce what has otherwise been an elusive right. For for more detail on the history of the legislation, you may be interested in Copyright Small Claims: An Idea Whose Time Has Come.
How Laws Begin to Work
Legislation or a statute, once enacted, starts working in pieces. First, there's the language of the law itself. Then there are the rules the Copyright Office will make to fill in some of the technical details not otherwise covered by the statute. The custom and practice of the Copyright Claims Board itself and the folks who use it make up the third piece of the legal puzzle.
The pieces operate together to establish an alternative forum for resolving copyright disputes. Statutory language, rules, and custom combine to form and function as the law.
This post examines how the legislative piece of the CASE Act is designed, providing a breakdown of what is in the statute. We'll take it in bite sized pieces adding more explanation over the course of the next few months or so until all sections of the Act are covered. In the meantime, the Copyright Office will set up the Copyright Claims Board and its processes.
A different post will look at the rules once the Copyright Office issues them. When the Board finally begins to take and resolve claims, I expect a series of posts will follow analyzing the outcomes. Once all three pieces are in place and operating—the statute, the rules, and the practice—we'll have a chance to see if the solution is working.
Here's a copy of the statute: The Case Act—62 pages extracted from the more than 5,000 pages of the Consolidated Act. The table of contents of the full Consolidated Act comprises the first six pages of this extract, just to put the CASE Act in context.
Where Does the CASE Act Fit in the Overall Scheme of Copyright Law?
U.S. Copyright Law lives at 17 U.S.C. (United States Code) §101. The law is broken up into chapters. The CASE Act has become Chapter 15, 17 U.S.C §§1501 to 1511, coming soon to online databases near you.
When Will the Copyright Claims Board Be Up and Running?
The Copyright Office has one year, or until December 26, 2021, to get the Copyright Claims Board underway. This involves hiring the Claims Officers, attorneys for the Board, and administrative staff; finding physical space; establishing a fee schedule; designing and implementing an online portal for claims filing and management; and setting up a virtual claims hearing system.
If, for some good reason the Copyright Office can't pull it off in a year, it can ask Congress for a six month extension.
For those creatives whose work is being infringed on a regular basis and are ready to enforce their rights now, this time frame seems like another eternity. For others, this year allows a fair amount of time to get ready to take advantage of what this new law has to offer.
You need Copyright Registrations on Your Creative Work.
In order to obtain a decision from the Copyright Claims Board that enforces your rights, you need a copyright registration on the creative work you claim has been infringed. You can bring a claim after filing an application, but without the registration, you won't get a decision from the Board.
This approach is slightly more generous than the process for filing a complaint in federal court. The Supreme Court has decided that a registration is needed and that an application is insufficient.
The application/registration requirement for filing a claim is in 17 U.S.C. §1505.
Having copyright registrations on your creative work is a best practice for small business, creative professionals, and entrepreneurs. If you haven't yet, now is the time to file applications on your portfolio.
The rule of thumb for deciding when to protect your creative work is to apply for registrations on:
- creative work you intend to sell
- creative work you have already sold
- creative work that has been infringed
With copyright registrations in hand, you will be ready to enforce your rights before the Copyright Claims Board.
Issues the Copyright Claims Board Can Decide
There are three types of claims that can be brought before the Copyright Claims Board:
- a claim of copyright infringement;
- a request for a declaration of non-infringement; and
- a claim for misrepresentation in a DMCA notice.
Copyright infringement is when a copyright owner's rights are exercised without the owner's permission. Remember that copyright is not one right, it is a bundle of exclusive rights: the right to reproduce your work; the right to perform or display your work; the right to distribute your work; and the right to create derivatives of your work.
Infringement usually means unauthorized copying of the protected work. But it can also mean things like performing a play or song without permission or publishing someone's work without permission (like a private letter).
In some cases, using a work beyond the scope of a license agreement can be infringement. Say an artist licensed her image for use on a printed calendar and the person who licensed the work instead used it to create fabric. If the use of the image on fabric is not in the license agreement, that is an unauthorized use and is an infringement. It is also a breach of contract, but the Copyright Claims Board would not be able to decide the contract issue.
The second type of claim that can be heard by the Copyright Claims Board is one in which a person seeks a declaration of non-infringement. With this claim, a person is looking to the Board to resolve uncertainty by issuing a declaration that there is no infringement. This claim would be brought after someone is accused of being an infringer and who denies it. The person who claims that there is no infringement may be relying on fair use, or maybe, independent creation. In any event, they want the matter settled so they ask the Copyright Claims Board for a determination of non-infringement.
The third type of claim that can be resolved by the Copyright Claims Board is one which alleges misrepresentation in a DMCA notice. DMCA stands for the Digital Millennium Copyright Act. The DMCA notice and takedown process is a tool for copyright holders to get user-uploaded material that infringes their copyrights taken down off of websites. What was originally envisioned as a quick and easy way to remove infringing material from the internet, has become a tool of abuse in some instances. The Copyright Claims Board is authorized to address those cases.
Next month, we'll start looking at the damages that can be recovered when bringing a successful claim. Then we'll focus on the procedures you need to follow to bring a claim before the Copyright Claims Board.
It’s all the unanswered questions I’m so curious about, like how much will it cost, will there be some kind of public record of claims filed, and what happens if the infringer we want to file a claim against is posting the stolen content on a social media platform and has no contact info.
You probably don’t have the answers yet either. I sure hope it’s not a whole year before this is ready to take advantage of.
Thanks for this informative update. I look forward to the follow-up posts.