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[Copyright] A New Avenue to Claim Copyright Infringement

- and the difference between the Trademark Office and the Copyright Office

· Copyright,Litigation,Entertainment Law,Trademark,Film and Television

On December 21, 2020, Congress passed the must-pass Omnibus COVID-19 Relief Bill, which also piggybacked a bill that the Copyright Office had been pushing for years - the Copyright Alternative in Small-Claims Enforcement Act (CASE Act).

According to the CASE Act, and soon we will see in the news, the U.S. Copyright Office will establish the Copyright Claims Board and provide a whole new avenue for a copyright owner to bring infringement claims that do not exceed $30,000 ($15,000 per claim) against an alleged infringer. This act enables the Copyright Office, for the first time, to directly adjudicate infringement claims within its own tribunal by a three-judge panel. We also expect a less expensive and more streamlined process with the Copyright Claims Board compared to the traditional federal court proceedings.

This act has a particular focus on Internet infringement cases as those cases usually involve small amounts of damages and the need for quicker results. Many copyright owners love this new proposed tribunal proceeding because it would be less burdensome for them to pursue infringement remedies. On the other hand, this act is criticized by others as it could be difficult for the tribunal judges to stay neutral, and there is a concern for good-faith Internet users who misuse Internet content then face legal and financial liabilities.

It is important to discuss the differences between the United States Patent and Trademark Office (USPTO) and the United States Copyright Office. Among the three pillars of intellectual property – trademark, copyright, patent – the USPTO governs the registrations of trademarks and patents as well as the related disputes. Meanwhile, before the proposed Copyright Claims Board being established, the Copyright Office does not engage in any copyright disputes. This is simply because, while a copyright registration is more of a public record, a trademark registration or a patent registration gives the owner the presumed national and exclusive right over the mark/patent. Since last year, there has been a growing demand for copyright registrations due to the 2019 case law requiring a copyright registration before an infringement claim commences. It seems the Copyright Office is again expanding its scope of authority by establishing this new tribunal.

The dynamic of copyright registration and copyright infringement enforcement may drastically change in the next couple of years due to the passage of the CASE Act. If the Copyright Claims Board proceeding has a similar effect to the Trademark Trial and Appeal Board (TTAB) proceeding, we would see substantially less copyright infringement cases be brought in federal courts.

As we all live on the Internet, there is a surging demand worldwide in resolving Internet infringement disputes. In 2017, China established its first Internet Court that exclusively reviews internet-involved matters in China's central e-commerce city, Hangzhou (where Alibaba is located), and it has been a great success in terms of efficiency and sufficiency of remedies.

Sincerely yours,

Silvia Sun, Esq.

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