The Copyright Claims Board: Worrying Implications for Scholarship

This academic year, researchers and scholars may have to navigate a new venue in which alleged copyright infringement cases will be heard: the Copyright Claims Board (CCB), created by the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020.

The purported intention of the CCB is to reduce the burden on rights holders in enforcing their copyrights. The CCB has simplified procedures to make it easy for claimants to bring copyright infringement claims such as the following:

• Actions do not need to be filed in federal court.
• Legal representation is not required.
• Filing fees start at one hundred dollars.
• Statutory damages are available for an infringement that occurred prior to copyright registration.

This lowered bar to bring claims before the CCB means that nearly any photograph, social media post, or quote put online could find itself targeted by a CCB lawsuit. The changed requirements for claims put a wide swath of open digital scholarship, teaching, learning, and digitized collections at risk to CCB claims with questionable merit.

CCB proceedings may also pose a threat to freedom of expression for scholars and others who build on original works. There is, of course, the danger that the resolution of CCB infringement claims could result in required payment or an agreement to cease certain activity. Yet if a claimant files a takedown notice under the Digital Millennium Copyright Act (DMCA) in addition to a CCB claim, the allegedly infringing work could remain off-line as long as it sits on the CCB docket awaiting resolution. This potential timescale is in contrast to the current DMCA notice-and-takedown regime, which requires an internet platform to repost an allegedly infringing work online within fourteen days in response to a counternotice that the work is not infringing. The new, extended takedown period thus constitutes a form of censorship.^Footnote1

Supporting Creative Pedagogy

As libraries and higher education institutions host more virtual classes, lectures, digital collections, and events, these entities should prioritize helping students, faculty, staff, and patrons understand their rights in the digital arena, including fair use. According to Maryam Fakouri, scholarly publishing and outreach librarian at the University of Washington (UW), open pedagogy is on the rise as faculty and students work together to create public resources and share knowledge online, taking advantage of the full scope of communication allowed by digital media.^Footnote2 At UW, one way that students are encouraged to engage in scholarly dialogue is by becoming authors themselves. In the digital realm, their scholarly contributions are increasingly multimodal.

Fakouri and her colleagues—scholarly communication experts at the University of Washington—support instructors who create assignments that may require students to use copyright-protected content, advising on permissions processes and fair-use analyses. For instance, to create the open textbook project Jacob Lawrence in Seattle, Fakouri worked with faculty and students to secure permission from the Jacob and Gwendolyn Knight Lawrence Foundation for the free educational use of reproductions of Lawrence's works. The book is a scholarly examination of Lawrence's time working in Seattle. The reproductions are critical; in each chapter, a student interprets and analyzes a painting or series by Lawrence, adding a key missing piece to the scholarly understanding of Lawrence's life and work.

Other multimedia digital scholarship projects empower students to rely on fair use rather than seeking permission. Reclaiming Venus: The Many Lives of Alvenia Bridges uses maps, images, sounds, texts, and artifacts to tell the story of the music producer and model Alvenia Bridges. And for her website Deconstructing the Construction: The Female Images in Chinese Detective Films, 2010–2020, Ying-Hsiu Chou presents myriad film clips to examine images of women in popular Chinese detective films.

Students and CCB Claims

Federal and state government entities are not subject to CCB claims. Also, the CASE Act allows public and private libraries and archives and their employees to preemptively opt out of CCB proceedings. Other users of copyright-protected works, including students, are vulnerable to CCB claims. However, any person subject to a CCB claim has the ability to opt out of the CCB forum. If claimants want to pursue their claims, they would have to do so through a normal copyright infringement action in federal court. Opting out requires an affirmative act after receiving notice of the claim; students who ignore the claim will waive their ability to opt out and find themselves before the CCB tribunal. Table 1 summarizes how the CCB applies to different academic stakeholders.

Table 1. CCB's Impact on Stakeholders

Can a CCB claim properly be brought against…

Source: Association of Research Libraries, CASE Act Toolkit
Type of Stakeholder	Type of Institution
	Federal or State Government Entity	Private Institution
A "library" or "archives"	No	Yes, unless an authorized signatory of the library or archives preemptively opts out of CCB proceedings
Employees of the library/archives in the capacity of their employment	No. The issue of whether someone is acting in the capacity of their employment may be decided only after a claim is filed.	Yes, unless an authorized signatory of the library or archives preemptively opts out of CCB proceedings
Employees of the institution acting within the scope of their employment capacity	No. The issue of whether someone is acting in the capacity of their employment may be decided only after a claim is filed.	Yes
Employees of the institution acting beyond the scope of their employment	Yes	Yes
Students	Yes	Yes

Aside from the limited exceptions noted in table 1, the American Civil Liberties Union (ACLU) warns that the CASE Act could potentially affect every person who communicates online.^Footnote3 Given the broad reach of the CCB, institutions and individuals must understand the potential implications of a CCB claim against them, as well as their options in responding to a claim. Librarians are particularly concerned that students understand the ramifications of receiving notice of a CCB claim. At the same time, librarians do not want the fear of CCB claims to chill scholarship and freedom of expression.

The likelihood of students being targeted with claims against their academic work is unknown. Depending on a copyright owner's motivation, pursuing an infringement case against a student through the CCB may not be worth the time, depending on the objective. Would the copyright owner want the work taken down? Would the copyright owner pursue damages? If the latter, claimants would likely be confident of winning their case and recovering costs for CCB proceedings and any attorneys' fees. The implications of the CCB for campus activities are thus uncertain. What is certain is that copyright is meant to further knowledge and the useful arts; it is not intended to be used as a tool for gatekeeping or censorship.

Notes

With thanks to Maryam Fakouri for our conversation. Fakouri would like to acknowledge the work of her colleagues Lauren Ray, who created and maintains the "Open Educational Resources and Open Textbooks: Open Pedagogy" research guide, and Ying-Hsiu Chou, whose Deconstructing the Construction: The Female Images in Chinese Detective Films, 2010–2020 website won second prize for Best Video Essay at the 2022 Adelio Ferrero Film and Critics Festival in Alessandria, Italy.

1. Ernesto Falcon, "Life-Altering Copyright Lawsuits Could Come to Regular Internet Users Under a New Law Moving in the Senate," Electronic Frontier Foundation (website), July 10, 2019. Jump back to footnote 1 in the text.↩
2. Personal communication with Maryam Fakouri, August 21, 2022. See also University of Washington Libraries, "Open Educational Resources and Open Textbooks: Open Pedagogy," University Libraries Research Guide (website), n.d., accessed November 7, 2022. Jump back to footnote 2 in the text.↩
3. ACLU to Mitch McConnell, Nancy Pelosi, Chuck Schumer, and Kevin McCarthy, "Re: Oppose Passing H.R. 2426 Outside of Regular Order," December 7, 2020. Jump back to footnote 3 in the text.↩

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Katherine Klosek is Director of Information Policy for the Association of Research Libraries (ARL).