Copyright law is the backbone of the publishing industry and the lifeblood of writers and other creators. It puts food on the table and pays the rent. It allows an author to write the next book or article, the photographer to set up the next shoot, the songwriter to keep writing music. The internet has made it easier for writers, composers, filmmakers, photographers, designers, and other creatives to distribute their work to the world—but it also makes it easier to steal or exploit others’ creative works.
Today, the vast majority of individual and small business copyright owners do not have the ability to enforce their copyrights. Copyright claims can only be brought in federal court, and such litigation generally costs hundreds of thousands of dollars. This is true even if the copyright owner simply seeks a reasonable license fee of a few hundred or thousand dollars. Such a system is absurd. A bill to create a much more sensible alternative to federal litigation has been working its way through Congress and promises to make copyright meaningful again for the millions of individuals and small businesses whose welfare depends on it.
The Copyright Alternative in Small-Claims Enforcement (CASE) Act would create an administrative tribunal within the U.S. Copyright Office to handle small copyright infringement cases. It would provide a streamlined, less formal process than federal court and would be drastically cheaper and more efficient. The parties would not need to hire attorneys, and all proceedings would be conducted remotely. To ensure impartiality, the Librarian of Congress would appoint a three-“judge” panel, with at least two of the panelists possessing previous experience representing a diversity of copyright interests. To address constitutional concerns, the process would be entirely optional for both parties.
With so many threats staring down 21st-century creators—many of them enabled by the digital transformation—a small claims court for copyright disputes is needed more than ever. Take book authors, for example. According to a recent Authors Guild survey, writing-related earnings plummeted to a median of $6,080 in 2017—down 42% since 2009. Full-time U.S. authors, meanwhile, earned a median of only of $20,300 from their writing. That’s well below the federal poverty line for a family of three or more. Over half of the authors surveyed reported earnings from their writing that were below the poverty line for an individual. These are not your typical federal court litigants.
Yet individual authors have more grounds for litigation than ever before. Digital piracy is proliferating. A 2017 Nielsen consumer survey found that e-book piracy reduces U.S. book sales by $315 million annually, taking a huge bite out of authors’ earnings, regardless of whether the authors are traditionally or independently published. In the last two years, the number of piracy and counterfeiting issues reported to the Authors Guild’s legal department has increased at least tenfold. Meanwhile, explosive growth in the sale of counterfeit books, among other deceitful schemes, has been enabled by third-party-seller platforms such as Amazon and eBay. Pirated and counterfeit books give rise to claims of copyright infringement that could be disposed of by a small claims tribunal but are not worth the time of day in federal court. The CASE Act, if passed into law, would help—albeit belatedly—provide greater accountability for intellectual property theft.
The legislation is reasonable, fair, and—importantly—passable, as numerous safeguards to prevent abuse and ensure fairness and due process were added to the bill to address the concerns raised by its opponents.
The lack of an effective copyright enforcement regime is an existential threat to the creative economy and the copyright industries. On an individual level, the inability to enforce one’s rights undermines the economic incentive to create new works. On a collective level, it corrodes respect for the rule of law and deprives society of the benefits of creativity.
As long as expensive, protracted federal litigation continues to be the sole option to resolve disputes, professional creators and the works they contribute to our society will remain at the mercy of infringers. To everyone who believes in the power of literature and the arts to transform and entertain, we at the Authors Guild encourage you to contact your congressional representatives and senators to request that they support this bill.
Mary Rasenberger is the executive director of the Authors Guild and the Authors Guild Foundation.