In this guest column, David Israelite, president & CEO of the National Music Publishers’ Association (NMPA), the trade association representing American music publishers and their songwriting partners, argues in favor of the CASE Act, which would create a board within the U.S. Copyright Office to decide copyright disputes rather than going before a court.
A songwriter’s work is only as valuable as her or his ability to enforce their rights. Unfortunately, for years, small business music creators have had almost no reasonable way to bring infringement claims in court because of the massive cost and cumbersome process to do so. The CASE Act presents a much-needed solution.
Imagine you’re a songwriter or photographer and you come across your own work being used commercially online. What are your options? Bringing a claim in district court would cost a great deal and demand significant time and expertise. Most likely, you would not take the legal and financial risk of litigation, and therefore forfeit the value of your creative work in what amounts to theft by lack of recourse.
Introduced last year by Congressman Hakeem Jeffries (D-NY), the Copyright Alternative in Small-Claims Enforcement (CASE) Act creates a new Copyright Claims Board (CCB) within the U.S. Copyright Office. The CCB will allow creators and copyright owners to represent themselves, without the need for an attorney, and caps damages at $30,000. No longer will creators be compelled to enforce their copyrights in federal court, in person, with the burden of exorbitant attorney’s fees. The bill has been supported within the music, photographic, literary and other creator-centric communities for years, and now Senate passage actually could happen this summer.
In a time where little agreement is found across the aisles of Congress, the CASE Act is bipartisan and passed resoundingly out of the U.S. House of Representatives last year. While the bill may seem like common sense, it’s movement has been prevented by one lawmaker. Senator Ron Wyden (D-OR) has put a hold on the bill, acting on behalf of the usual anticopyright tech companies that have enjoyed relative immunity for years and do not want to risk the burden of claims being brought against them or their platforms.
The reason only one senator is demanding concessions is because over the years the bill has been modified to accommodate all legitimate concerns with dutiful consideration of all sides. The point was not simply to switch the burden from creators to users – it was to give both an avenue for fairness when necessary – acknowledging that a level playing field must be created.
This solution did not come quickly or easily, in fact it began almost a decade ago. The basis of legislation resulted from a thoughtful study by the U.S. Copyright Office requested by former House Judiciary Committee Chairman Lamar Smith (R-TX), in 2011. The study, which came after years of public hearings and over 100 substantive comments from stakeholders across the spectrum, determined that most smaller creators have a massive barrier to entry when it comes to enforcing their copyrights.
The subsequent bill has been sculpted and refined, and is a balanced piece of legislation that provides efficiency and prevents abuse – requiring both parties to agree to go to the claims court – and asserts reasonable limitations on how and to what extent it can be used. The bill also prevents ‘bad actors’ from taking advantage of the new tribunal by fining and ultimately barring repeat offenders. Judges must be experienced in deciding all types of copyright cases from both the user and owner perspectives.
At the National Music Publishers’ Association (NMPA) we represent companies of all sizes – from the majors to the large indies to small, niche firms. This issue shouldn’t just be seen as affecting only the latter. We all have a vested interest in making sure all copyrights maintain their value. We’ve seen the lack of a path to justice create a ripple effect throughout our industry – degrading music’s worth for companies large and small. We must remember that the integrity of all intellectual property starts with the small business owner’s ability to enforce their rights.
There have been many moments where influential interests against this bill have threatened to destroy it altogether, however, as we saw with the Music Modernization Act, the industry and Congress can come together and fix certain copyright issues where there is an obvious market and legal failure.
Creators – from songwriters to authors to artists – are united around this issue and must be given a pathway to protect their property. Likewise, those who rely on creative works should also support the bill as it ensures a legal marketplace and that they will be heard in a timely and fair way in the event of a disagreement. Everyone will benefit from improving and modernizing the system, and when it comes to copyright disputes, we have found a bill on which both sides should agree.