The U.S. Congress is taking initial steps to write what the Register of Copyrights, Maria Pallante, called “the next great copyright act.” This will be a long, complicated process, but there are some proposals already on the table, including one for a “small claims” process for copyright.
Traditionally, if a copyright was infringed, the owner had two options: send a cease and desist letter with hopes that the infringer would stop (and possibly pay money), or take the matter to federal court through a standard lawsuit.
But in September, 2013, the US Copyright Office introduced a proposal that would allow for relatively small copyright claims to be brought in front of a tribunal of copyright experts if both sides agreed.
As the Copyright Office said:
“Not all of copyright owners have the same resources to bring a federal lawsuit, which can require substantial time, money, and effort. Moreover, while a copyright owner may want to stop an infringement that has caused a relatively small amount of economic damage, that owner may be dissuaded from filing a lawsuit because the prospect of a modest recovery may not justify the potentially large expense of litigation.”
The implications of such a proposal on fanworks are two-fold, and a mixed bag for fans.
First, to the extent that fanworks are protectable by copyright — a complicated question in its own right — it might make it easier for fan creators to seek redress against people who copy their work without permission, as well as make them stop the infringement. So for example, if a fan creator found their work copied without permission (such as printed onto shirts or calendars, or used in ads), they might be able to register the work with the Copyright Office and then, if the other party agreed, use the tribunal to resolve the issue. An order to stop infringing and limited money damages might be available. The proceeding is expected to be simpler than a traditional lawsuit in federal court, in part because all the arguments will be made electronically rather than in person. It wouldn’t simplify the question of whether the fanwork was protected by copyright, but it might simplify the process of dispute resolution if it were.
Second, making it easier and cheaper for copyright owners to get damages could mean that copyright owners would assert more claims where fair use should actually apply. There is an unfortunate history of some copyright owners abusing simple procedures, such as DMCA notices, in order to suppress fair uses they just don’t like. The proposed tribunal would be able to consider fair use and other defenses for infringement, but no one knows whether the experts would be favorable to fair use or skeptical of it. People with strong fair use defenses might well prefer the additional protections found in federal court. Because the tribunal would be voluntary, any fan who received an infringement claim would want to consult a U.S. lawyer who specializes in intellectual property law and is respectful of fair use before agreeing to participate.
The OTW will be watching these issues as they develop. While there’s no specific timetable for congressional action at this time, there will likely be hearings on this and other copyright issues over the coming year; the Copyright Office can’t turn these proposals into law on their own. Keep an eye out; when Congress begins hearings, it will be very important for representatives to hear from people supporting fair use to balance out the concerns of the giants.