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US copyright court set to serve photographers

The US court system may soon shape an Intellectual Property small claims court, after a Senate Judiciary Committee passed the major Copyright Alternative in Small Claims Enforcement (CASE) Act.

The Professional Photographers of America, and other US photo industry groups, have been advocating for a copyright small claims court.

The CASE act will provide a simplified and affordable route for photographers and creators to pursue copyright infringement, with statutory damages capped at US$15,000 per infringement, with total damages up to US$30,000.

Obviously this is welcome for US photographers, as image copyright infringement doesn’t typically exceed US$15K. Industry trade group, Professional Photographers of America (PPA), ran a survey which found 70 percent of photographers have had their work infringed, and almost all value it at less than US$3000. However, PPA says that most attorneys won’t consider taking on a copyright case worth less than US$30,000.

US photographer associations and copyright groups have been lobbying for a small claims court for years.

‘Under the law, when a creator’s work is infringed, the only option they have is to take their copyright infringement case to federal court,’ writes Copyright Alliance CEO, Keith Kupferschmid. ‘But federal court is often far too expensive and complex to navigate for most individual creators and small businesses that own copyrights. What this means is that America’s creators have rights under the law but no practical way to enforce those rights when someone steals from them.

‘The CASE Act will help change that by providing creators with a voluntary, inexpensive, and streamlined alternative to federal court that they can use to protect their creativity and their livelihoods, and in doing so fulfil the purposes of the Constitution.’

In Australia a copyright small claims court isn’t currently on the agenda. But it was one of the Productivity Commission’s few positive (for photographers) recommendations in its final report into intellectual property in late 2016, and the Government ‘noted’ this recommendation.

During the Productivity Commission’s 2016 public hearings commercial photographer Chris Shain, representing the AIPP, welcomed the proposal of an Australian IP small claims court.

Back in the US, the CASE Act was first floated to Congress in 2017 by a bipartisan group of representatives.

If the legislation now passes, the USA will join countries like the UK, which has a dedicated IP small claims court called Intellectual Property Enterprise Court (IPEC). Many UK photographers regard IPEC’s Small Claims Track, introduced in 2012, as a practical solution for pursuing cases of copyright. It only hears copyright cases, attempts to resolve via mediation, legal representation isn’t required, and the judge is an IP expert.

‘The IPEC small claims track is designed to be used by parties who do not have a legal representative acting for them,’ it says in the Guide to the IPEC Small Claims Track. ‘Accordingly it has more simplified procedures than a standard civil claim, hearings are more informal in nature and evidence is not usually taken on oath. Additionally, if all the parties agree, the court may deal with the claim without a hearing at all, by considering the documents in the case and the written arguments of the parties instead. It should be noted, however, that the court will still apply the law and will decide the case on the evidence the parties have made available.’

However, the US CASE Act also has detractors.

‘Creating a quasi-court focused exclusively on copyright with the power to pass judgment on parties in private disputes invites abuse,‘ writes Katharine Trendacosta, manager of policy and activism at Electronic Frontiers Foundation, a digital rights lobby group.  ‘It encourages copyright trolling by inviting filing as many copyright claims as one can against whoever is least likely to opt-out—ordinary Internet users who can be coerced into paying thousands of dollars to escape the process, whether they infringed copyright or not.

‘Copyright law fundamentally impacts freedom of expression. People shouldn’t be funneled to a system that hands out huge damage awards with less care than a traffic ticket gets.’

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