By Lexie Elder, Associate at ND Galli Law
It’s been nearly one year since the Copyright Claims Board (CCB) opened for business; since then, more than 400 copyright claims have been filed with the CCB. The CCB’s upcoming one-year anniversary provides an opportune moment to examine developments over the past year and the likely trends going forward.
What is the Copyright Claims Board?
The CCB was established in 2020 following the enactment of the Copyright Alternative in Small-Claims Enforcement (the “CASE Act”) and officially began accepting copyright claims in June of 2022. Designed to provide creators and users of creative works protected by copyright an affordable, efficient, and streamlined way to resolve copyright disputes, the unique forum acts as an alternative to federal court litigation for copyright claims of $30,000 or less in the following categories: claims of infringement, claims seeking declarations of non-infringement and claims of Section 512(f) Misrepresentation.
The CCB’s unique characteristics, including its low fees, entirely virtual proceedings, streamlined process and option for parties to represent themselves without an attorney, makes it an attractive option for some litigants. However, participation in CCB proceedings is voluntary, meaning all parties must agree to resolve the dispute before the CCB as opposed to federal court. Should a claimant elect to file its claim before the CCB, a respondent may “opt-out” of CCB proceedings within sixty (60) days of service. If the parties agree proceed in the CCB forum, a tribunal with extensive expertise in copyright matters will preside over the matter. When total damages sought in a claim do not exceed $5,000 (“Smaller Claims”), a single member of the tribunal is assigned to the claim; Claims involving damages between $5,000.01-$30,000 (“Small Claims”) are handled by a three-member tribunal.
Key Trends in Year One
Infringement Claims and Disputes Over Visual Works Dominate Year One Filings
Available data shows 1 that infringement claims represent the bulk of the CCB filings thus far. In year one, over 300 infringement claims were filed, followed by approximately 30 misrepresentation claims and four non-infringement claims.
Claims involving works of visual art–pictorial, graphic, structural–also dominated in the CCB’s first year, comprising 42% of the claims filed. Motion picture works were identified in 21% of claims, with literary work and sound recordings each accounting for 11% of filed claims. Finally, musical works represented approximately 6% of claims filed within the first year and dramatic works made up for 1% of claims filed.
While most of the claims brought before the CCB in its first year are considered “Small Claims” ($30,000 monetary limit), approximately one-third of the claims filed were “Smaller Claims” ($5,000 monetary limit). To some, the notable number of Smaller Claims indicates the CCB is an attractive and affordable option for artists who license their works for smaller amounts, which is considered a good sign for the future of the CCB.
Opt-Outs Are Uncommon
Since a party’s participation in the CCB proceedings is entirely optional, one concern raised during the formation of the CCB was that the many of respondents would invoke their right to “opt-out”. However, according to the most recent data, of the 400+ claims filed, only 27 respondents “opted out,” meaning approximately 93% of respondents voluntarily agreed to the CCB forum. As noted by Suzanne Wilson, the Copyright Office’s general counsel, the low opt-out number indicates an embrace of the CCB’s procedures thus far.
A High Dismissal Rate
Although respondents are overwhelmingly consenting to the CCB forum, a large number of claims were nevertheless dismissed on procedural grounds. According to recent data, more than 50 claims were dismissed as a result of a claimant’s failure to provide proof or waiver of services, and nearly 100 claims were dismissed for a claimant’s noncompliance and/or failure to amend a noncompliant complaint. On one hand, the high rate of dismissal could indicate that some claimants, particularly those who have chosen to represent themselves without legal assistance, are struggling to navigate and comply with the CCB’s procedural requirements. On the other hand, some have interpreted the numbers as proof that the CCB’s screening process for frivolous claims is working.
Changes Going Forward
Over the past year, the Copyright Office has proposed, tweaked and issued a number of rules relating to the CCB. In fact, earlier this month the Copyright Office issued a notice of proposed rulemaking to modify the CCB’s current “agreement-based” counterclaim procedures. Accordingly, while first year trends may offer a glimpse of what’s to come, modifications and changes aimed to facilitate the CCB’s purpose are expected to develop over time.
[1] All data discussed here is based on a report presented at the ABA IPLSPRING meeting by members of the Copyright Claims Board. A copy of that slide deck is available upon request.
