Chu Close to Circulating Copyright Small Claims Process Legislation
Rep. Judy Chu, D-Calif., said she's close to circulating draft legislation aimed at establishing a voluntary copyright small claims process. Chu's bill would be the second bill on copyright small claims floated this year. Reps. Hakeem Jeffries, D-N.Y., and Tom Marino, R-Pa., bowed their Copyright Alternative in Small-Claims Enforcement Act (HR-5757) in July (see 1607140035). Chu and Jeffries have been working separately on their bills but both proposals similarly mirror elements of the 2013 Copyright Office recommendation for establishing an alternative copyright small claims process (see 1606080068). Both bills, for instance, would house the small claims process within the CO.
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Chu told us she's aiming to release her draft bill before the House adjourns at the end of this month for the general election campaign. Chu said her bill would directly set up the small claims process rather than pilot it as Jeffries and Marino propose in HR-5757. Chu said during a Copyright Society for the USA (CSUSA) event that she has worked closely with photographers' and visual artists' industry groups to “ensure that we create a process that will work for the individual creators.” Chu said her bill also aims to make the small claims process “as easy as possible," in part by allowing many of the process' procedures can be accomplished digitally. The bill would direct the CO to consider an “expedited” small claims process for any claims under $5,000, Chu said.
Chu said she hopes she, Jeffries and stakeholders “can all work together” on copyright small claims so that their bills are strategically positioned to be a priority for the House Judiciary Committee as it moves toward determining its Copyright Act review legislative priorities. Chu has been working with stakeholders to draft her bill since late last year and thought she would be leading the legislative push, a music industry lobbyist told us. Chu “felt slighted” by Jeffries' swift introduction of HR-5757 and is continuing to pursue her bill “because she doesn't want to cede this issue to him at this point,” the lobbyist said.
Jeffries said Wednesday that he and Marino intended HR-5757 to be a “middle ground” between the “cumbersome” notice-and-claim copyright infringement process and “massive” federal litigation. HR-5757 would establish the pilot three-member Copyright Claims Board within the CO, with each board member serving a six-year term. The bill would also allocate at least two lawyers to serve the CCB. The board's jurisdiction would be limited to cases involving damages claims under $30,000, Jeffries said. The CCB process would be voluntary and all parties could opt out, “but we're hopeful that because of the efficiency of the proceeding, both petitioners and respondents will find it to be an appropriate way to resolve any copyright disputes that might have been laid on the table,” Jeffries said. CCB proceedings wouldn't require parties to appear in person, he said.
CSUSA President Nancy Wolff and others said during the event they're hopeful the progress on HR-5757 and Chu's draft legislation will lead to copyright small claims legislation becoming a priority for House Judiciary. Final legislation will need to have appropriate incentives to encourage all parties to participate in a voluntary small claims process, they said. Proposed small claims processes won't require parties to retain legal counsel to effectively argue their cases, but a path for the prevailing party in a dispute to receive compensation for attorney's fees under some circumstances should still be considered as a potential incentive, said American Society of Media Photographers Executive Director Tom Kennedy. National Geographic Partners Vice President-Business and Legal Affairs Yvonne Bennett said HR-5757 already would allow a party to seek compensation for attorney's fees in some circumstances where the other party is acting in bad faith.
Former Songwriters Guild of America President Rick Carnes and others cited the need for a limited discovery process as part of a copyright small claims system. Discovery doesn't need to be lengthy “but there should be something in order to get a case together,” Carnes said. The CO already has substantial expertise on discovery matters via the Copyright Royalty Board, which means it's “not freshly trodden ground” if a small claims process is established, said Sandra Aistars, George Mason University Center for the Protection of Intellectual Property director-copyright research and policy. Recovery of fees for the small claims process would also be a potentially effective incentive, Wolff said.