By Cheryl L. Davis
2017 was eventful on a number of fronts, not least of all in terms of legislation affecting the entertainment and arts industries. On Oct. 4, 2017, a bipartisan bill was introduced: the Copyright Alternative in Small-Claims Enforcement Act of 2017 (CASE). CASE would establish a “small” copyright claims tribunal in the U.S. Copyright Office, giving small copyright holders a much-needed tool to combat copyright infringement without having to bear the expense of going to federal court—which we know can be an extremely expensive proposition for even the most straightforward case of infringement.
If the bill passes, individual creators and other small copyright owners will not be forced to hire a lawyer (which some readers might deem a drawback) or go to federal court. Proceedings would be conducted remotely so that claimants do not have to travel. Damages in such cases would be limited to $15,000 per act of infringement with a $30,000 maximum, and injunctive relief would not be available.
Under CASE, participation in the tribunal would be on a voluntary basis and would not interfere with either party’s right to a jury trial. Some of the changes made to last year’s version of the bill include the addition of provisions (1) requiring the Copyright Office to expedite certificates of registration (a prerequisite to starting a copyright action) for parties with a matter before the small claims court, and (2) allowing a copyright holder to request a subpoena compelling an Internet service provider to disclose the identity of a user accused of infringement. The latter provision would be a boon to creators, among others, in their long-running fight against Internet piracy.
The Music Modernization Act (another bill introduced with bipartisan support) was introduced on Dec. 21, 2017. While it was still hot off the presses as of this writing, the stated goal of the bill is to “provide clarity and modernize the licensing system for musical works.” According to Sen. Collins, the bill’s lead co-sponsor, “[o]nly by ushering music licensing into the twenty-first century can we promote artistry and its appreciation long into the future, and that’s exactly what we’re doing with the Music Modernization Act.” The bill calls for, inter alia, the creation of a “Mechanical Licensing Collective” (MLC) by copyright owners which would grant blanket mechanical licenses for interactive streaming or digital downloads, and create a database including “unmatched” works (where the copyright owner has not been identified or located), permitting copyright owners to claim their songs and collect royalties accordingly. We will review the bill in greater detail and continue to monitor its progress.
The passage of the recent new tax bill is expected to affect the incomes of many Americans—and entertainers and artists in particular. Our division (as well as all the rest) will continue to monitor the situation so we can keep our clients duly advised.
Cheryl L. Davis is the general counsel of the Authors Guild. She was previously a partner at Menaker & Herrmann, where her practice focused on intellectual property and employment issues. Diane Krausz, chair of the Entertainment, Arts & Sports Law Section, thanks the author for drafting this article.
Reprinted with permission from the January 23, 2018 edition of the New York Law Journal © 2018 ALM Media Properties, LLC. All rights reserved.
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