As you probably know by now, the long-fought-for CASE Act was enacted in December, marking one of the most significant developments in copyright law since the DMCA in 1998. The CASE Act creates a dedicated forum within the Copyright Office for the resolution of disputes involving small copyright claims for a relatively small fee, as compared to the average $400,000 it can cost to litigants in federal court. The forum—called the Copyright Claims Board (or CCB)—will go live somewhere between December 2021 and June 2022.
The newly enacted statute lays out the broad parameters for the structure and processes of the CCB and leaves the task of implementing the legislation to the Copyright Office. The Copyright Office has 12 months (with a possible extension of another six months) to conduct all of the rulemaking necessary to launch the Copyright Claims Board and make it operational. Rulemaking proceedings to create federal regulations always allow for public input, and the Copyright Office is especially good at soliciting public input on new regulations, with at least two opportunities to comment. With so many procedures left to be determined by Copyright Office regulations, we expect the next year to be a busy one.
The Guild will, of course, engage in all of the pertinent rulemaking actions to set filing fees, requirements for commencing a claim, rules for notification, service and discovery, and a process for expedited review of registration applications pertaining to unregistered works subject to claims before the CCB, among others. We expect that the Copyright Office will soon start issuing initial notices of proposed rulemaking, which the Guild and other stakeholders will respond to with comments. Time allowing, the Copyright Office may also hold public roundtables and discussion sessions between staff and stakeholders, giving stakeholders like the Guild further opportunity to offer feedback and raise issues concerning important decisions on CASE Act operations.
Preparation for Legal Challenges
Even though the CASE Act passed with overwhelming support in both chambers of Congress, and was widely lauded, we expect that its opponents from the anti-copyright camp will now turn to courts to attack the legislation on the grounds that it denies the constitutional right to being heard by an Article 3 court. Their arguments are specious, since appearing in the CCB instead of federal court is entirely optional for both parties (and no different from arbitration or mediation in that sense), and the constitutionality of the CCB has been vetted and re-vetted by scholars and government lawyers. The Guild and a number of other arts and creator organizations are preparing to defend the CASE Act, and to ensure that our members have access to justice for copyright claims.
As soon as the CCB becomes operational, the Guild is poised to play a strong role in educating the public about how to use the CCB and the benefits of doing so. We are planning on hosting educational webinars and Q&As, as well as covering the rules in detail on our blog and website.
Once the system is in place and operational, the Guild’s legal services team will assist members who wish to utilize it. We will provide video and written instructions to supplement the CCB’s, help members assess the suitability of potential claims for the CCB, and also advise them on the process. Should members wish to have a lawyer represent them (though that is not necessary), we will have a referral list of competent, experienced copyright lawyers, as well as law school clinics who will provide pro bono legal assistance for CCB litigants, as permitted and contemplated by the CASE Act.