In Berne Convention, Copyright, Copyright Act, Orphan Works, TRIPS

Copyright Small Claims Courts for “orphan” infringements not viable

Some people think the Orphan Works amendment is a done deal and say the government should set up small claims courts to litigate the infringement cases that will follow.

The Orphan Works Report itself justifies this concern. It states that a “reasonable search” for a copyright holder will have to be “a very general standard” defined “by users, copyright owners and ultimately the courts on a case-by-case basis…”(p. 98, emphasis added) That means that if somebody infringes your work and you can’t “negotiate” a “reasonable fee” after the fact, you’ll have to sue them.

But copyright law is a Federal law. There are only 11 Federal Districts in the country with approximately 100 US District Courts. Would you have to travel to one every time you need to file a suit? If so, you wouldn’t be able add travel and lodging expenses to your claim. Nor could you add court costs or attorneys’ fees, even if you’ve registered the work. That wouldn’t be permitted by the “limitation on remedies.” The Orphan Works amendment virtually guarantees that the cost of suing an infringer who won’t pay will be greater than whatever you could get back from a lawsuit (and of course, you might not win).

By “limiting remedies,” the Orphan Works amendment would create a no-fault license to infringe. Last Friday, I asked Copyright Office attorneys how artists scattered across the country can be forced to go to Federal Courts to get minimum payment for infringed work. Their answer was they weren’t sure, but are considering establishing a copyright small claims court.But I don’t see how that resolves the jurisdictional problem: Are we supposed to believe the government’s actually going to set up a federal small claims court in every city and town in America just to hear copyright cases? I don’t think so. And what if you live in one city and the infringer somewhere else?

Another problem with relying on small claims courts is that awards are limited to $2,000. That would cap the “reasonable fee” the court could allow for any usage – regardless of the commercial value of the usage and the number of works infringed. Small claims judgments can’t be enforced. And since an infringer would only have to say he couldn’t read your signature on a picture to claim you were “hard to locate,” judges in a majority of cases might have to find for the infringer.

The whole idea of legalizing infringement and making artists go to court to get paid is absurd. The Orphan Works Report is a Rube Goldberg plan, designed by legal scholars and Free Culture advocates who want to make the public a generous gift of other people’s work – and supported by companies like Google who want a vast inventory of royalty-free images to sell access to. The hope that artists will lie down and take this — if we can just get a small claims court for city or state judges to administer federal copyright law – is a thin sugar coating on a poison pill. It certainly isn’t practical and may not be legal. Rather than rise to the bait, we think artists should oppose the Orphan Works amendment outright.

This is no time to go wobbly.

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