In advance of the Copyright Claims Board’s (CCB) implementation, the United States Copyright Office (USCO) unveiled a Frequently Asked Questions page describing the CCB and the Small Claims procedures. These FAQs explain when you will be able to file a claim, and they include the types of claims and defenses the CCB will be able to consider. 

The key takeaway from these guidelines is that copyright registration is more important now than ever. Remember: before submitting a claim, you will need to file an application to register the copyright of your image(s). 

About the CCB

What is the Copyright Claims Board (CCB)?

The Copyright Claims Board (CCB) will be an alternative to federal court for copyright disputes. It will be a voluntary forum that both parties will have the choice to use to get a legal resolution of various copyright matters.

Where will be the CCB be located?

The CCB will be located in the Copyright Office’s offices at 101 Independence Avenue SE, Washington, D.C. 20540. Note, however, that proceedings will typically be handled completely electronically so you won’t need to travel to Washington, D.C., to participate.

What will the CCB’s structure be?

The CCB will be located in the Copyright Office and will consist of three Officers appointed by the Librarian of Congress on the recommendation of the Register of Copyrights. Two of the Officers will have substantial experience in evaluation, litigation, or adjudication of copyright infringement claims. These Officers will have represented or presided over different types of copyright interests, including those of copyright owners and users. The third Officer will have substantial familiarity with copyright law and experience in the field of alternative dispute resolution. The Officers will be supported by multiple copyright attorneys, a paralegal, and an assistant.

What is the Copyright Office’s role?

The Copyright Office is charged with implementing the CCB by hiring Officers and staff and conducting the regulatory process. The Library of Congress’s Office of the Chief Information Officer will work on implementing technological solutions for the CCB, in cooperation with the Copyright Office. Once operational, the CCB will be a part of the Copyright Office.

Why isn’t the CCB mandatory? Why is there an option to opt-out?

The CCB is not mandatory so that it is consistent with the Constitution, including regarding the role of federal courts, the right to a jury trial, and to ensure proper due process.

How Can I Work for the CCB?

If you are interested in working on the Copyright Claims Board, including by serving as a Copyright Claims Officer, please check the Copyright Office’s USAJobs.gov job postings and the Implementation Tracker.

About Small Claims Procedures

What are small claims?

Small claims are claims involving copyright infringement when no party is seeking more than $30,000 in total relief. This includes claims of infringement, claims for declaration of noninfringement (when a party accused of infringement wants a legal statement that they are not liable for infringement), and claims regarding misrepresentations when filing a notice to takedown material under section 512 of the Copyright Act (which is part of the Digital Millennium Copyright Act, also known as the DMCA).

Will I have to file a claim in the CCB or can I file a claim in federal court?

Because the CCB is voluntary, you can choose whether to file your claim in the CCB or in federal court. Note, however, that you must make a choice between the CCB and federal court; you cannot file the same claim or counterclaim in both venues.

Can I file a claim with the CCB now?

Not yet. You will be able to file a claim when the CCB is operational, which is currently set for December 27, 2021. It is possible, however, that the date may be pushed back a little farther because the Register of Copyrights can extend the date to June 25, 2022, for good cause. Check back here or sign up for NewsNet service to get updates on when the CCB will begin accepting claims.

Once the CCB is accepting claims, will there be a time limit (or statute of limitations) for when I can file a claim?

You will be able to file a claim with the CCB within three years after a claim has accrued.

What types of claims and defenses will the CCB be able to consider?

The CCB will be able to consider the following:

• Claims for infringement of one of the exclusive rights in the Copyright Act
• Claims for a declaration of non-infringement of an exclusive right (when a party accused of infringement wants a legal statement that they are not liable for infringement)
• Claims for misrepresentation during the notice and counter-notice process under section 512 of the Copyright Act
• Counterclaims related to the same transaction or occurrence that is the subject of the original claim
• Legal or equitable defenses under copyright law or that are otherwise available

Will the CCB be able to refuse to hear my claim or counterclaim even if it is one of the allowable types of claims and counterclaims?

Yes. The CCB will be able to refuse to hear any claim or counterclaim that it would otherwise consider if:

• The claim has already been decided by, or is pending before, a federal court, unless that federal court has granted a stay to permit the claim to proceed before the CCB
• The claim is by or against a federal or state government entity
• The claim is asserted against a person or entity residing outside of the United States, unless the nonresident party initiates the proceeding
• The determination of a relevant issue of law or fact could exceed either (1) the number of proceedings the CCB could reasonably administer or (2) the subject matter competence of the CCB (for example, if the case involved complex factual questions regarding infringement of a computer program)
   

Will the CCB be able to dismiss my claim or counterclaim before making a final determination?

Yes. The CCB will be able to dismiss a claim or counterclaim during a proceeding for a number of reasons, including the following:

• You fail to provide appropriate notice to the responding party
• The responding party opts out of participating in the proceeding
• You bring a claim and miss one or more deadlines, unless you have justifiable cause (this is known as a “failure to prosecute”)
• There is a failure to join a necessary party
• There is a lack of an essential witness, evidence, or expert testimony
• If the Copyright Office refuses to register the work at issue in the case

Will I need to register my work with the Copyright Office before I bring a claim?

No. To bring a claim with the CCB, you will need to either (1) have a registration from the Copyright Office for the work(s) at issue or (2) have filed an application with the Copyright Office to register the work(s) at issue either before or simultaneously with filing a claim with the CCB. This is different than what federal courts require. In federal lawsuits, you cannot rely only on an application. Instead, you need to have a registration (or a refusal) from the Copyright Office before you can bring your case. Additionally, federal courts allow you to bring a case based on an application that the Copyright Office refused, but the CCB will dismiss a case if the application is refused.

If I don’t have a registration when I file a claim with the CCB, will the Copyright Office provide an option for expedited registration so I don’t have to wait as long to get my registration?

While there is no expedited process yet, the CASE Act directs the Copyright Office to issue regulations that allow for an expedited decision for works that are the subject of CCB claims. The Copyright Office will issue these regulations after seeking public comment. To learn when the Copyright Office begins this process, sign up for our NewsNet service or check back here on PPA.

What kind of relief will be available through the CCB?

The CCB will be able to award up to $30,000 in total damages in any one proceeding, regardless of the number of works at issue.
The CCB will be able to award either actual or statutory damages, based on what the party seeking damages requests. For actual damages, the amount will depend on the evidence provided during the proceeding and can be up to $30,000 for a single work (though there is a still a $30,000 cap overall). For statutory damages, the CCB will be able to award up to $15,000 per work. This means that if you seek statutory damages for a single work, the overall cap will be actually $15,000. Note, however, if you do not register the work(s) at issue within the timeframes established in section 412 of the Copyright Act, statutory damages will be limited to $7,500 per work.

The CCB will be able to issue an order for one party to stop engaging in certain activities when both parties consent.

The CCB will be able to require bad faith parties to pay the other party’s reasonable costs and attorneys’ fees. Generally, the cap on costs and attorneys’ fees will be $5,000, but the limit will be lowered to $2,500 if the other party is not represented by an attorney. Additionally, the CCB will be able to award a higher amount in costs and attorneys’ fees in extraordinary circumstances.

Will there be different procedures for claims of $5,000 or less?

Yes. Although not yet in place, the Copyright Office will establish specific procedures for proceedings involving claims of $5,000 or less.

Will I need an attorney?

You will be able to represent yourself and will not need an attorney to participate in a CCB proceeding. The CCB, however, will allow you to use an attorney so you will be able to hire or consult with one if that makes you more comfortable. The Copyright Office cannot recommend specific attorneys, but you may consider whether to reach out to a law school clinic or volunteer legal organization in your area if you would like assistance free of charge.

How will I be able to file a claim or counterclaim?

To file a claim or counterclaim, you will first have to make sure that the claim or counterclaim is one of the types of claims the CCB will allow. If it is, you will have to pay a filing fee and file a claim that includes a statement of material facts to support your claim. At that point, an attorney working for the CCB will review the claim to make sure that it follows the law and CCB procedures. If the CCB attorney finds that the claim is in order, you will have to properly notify the other party before any further action is taken. If the CCB attorney approves your claim to go forward, it does not mean that that the CCB will resolve the dispute in your favor; it just means that you have satisfied the initial legal and procedural requirements to continue.

How will I know if there is a CCB proceeding against me?

The party filing the claim will send you a notice, which will be followed by a notice sent by, or on behalf of, the CCB. Both notices will include information on how to opt out and the consequences of not opting out. The Copyright Office will issue regulations with further details regarding these notices and how parties bringing claims must provide them to you.

What are “service of process” and “proof of service”? How do they relate to the notice that parties bringing CCB claims must provide to the party they want to bring into a CCB proceeding?

“Service of process” is the legal term for how a party bringing a claim or counterclaim provides sufficient notice of a proceeding to the person who the claim or counterclaim is against. For example, it might include providing notice by first class mail or in-person depending on the circumstances. When “serving process,” a party will have to provide the notice that the CCB requires and which will be the subject of Copyright Office regulations. “Proof of service” is the documentation a party must provide to the CCB showing that they properly served the other party.

What if I do not want to participate in a CCB proceeding?

You can opt-out of a CCB proceeding by following the steps explained in the notices you will receive. If you opt-out, however, the other party still can bring a claim against you in federal court, which would likely be more expensive and time-consuming. If that happens, the fact that you opted out won’t be held against you in the federal court proceeding.

Will there be an additional opt-out option for libraries and archives?

Yes. In addition to using the general opt-out process, libraries and archives will be able to opt-out of all current and future CCB proceedings without having to individually respond to each claim a party might want to bring. The Copyright Office will develop regulations to explain how libraries and archives can take advantage of this opt-out procedure.

What happens if a party does not opt-out of an active proceeding and does not respond or appear?

If a party does not opt-out and does not appear, or stops appearing in some cases, the CCB may enter a default determination against that party. The CCB can only issue a default determination after following specific procedures explained in the Copyright Act, as well as procedures that the Copyright Office might implement by regulation. If the CCB decides that there is a default, it can dismiss the defaulting party’s counterclaims and order that the defaulting party pay monetary damages based on evidence submitted by the party bringing the claim. The CCB can vacate, or overturn, a finding of default in the interests of justice. A party can also ask a federal district court to vacate, modify, or correct a CCB determination if the default was caused by excusable neglect.

What kind of discovery will be allowed in CCB proceedings?

Generally, discovery will be limited to the production of relevant information and documents, written interrogatories, and written requests for admission.

What if the party who brings a claim stops pursuing it?

If a party brings a claim but does not pursue it, either by not properly notifying the other party or by failing to meet CCB deadlines or requirements, the CCB may dismiss the claim.

What will I be able to do if I disagree with a CCB decision in a proceeding in which I am a party? Will I be able to appeal?

You will be able to ask the Copyright Office or a federal court to review a CCB decision. Specifically, you will have the following options:

• Request that the CCB reconsider a decision if it includes a technical mistake or a clear legal or factual error that is material to the decision
• If the CCB denies your request for reconsideration, you will be able to ask the Register of Copyrights to review the decision to see if the CCB abused its discretion when denying the request for reconsideration
• Ask a federal district court to vacate, modify, or correct a CCB determination if (1) the determination was issued as a result of fraud, corruption, misrepresentation, or other misconduct, (2) the CCB exceeded its authority or failed to issue a final determination, or (3) in the case of a default or failure to prosecute, excusable neglect was the cause of the default or failure to prosecute

It is important to note that these options are not the same as the types of appeals you can make if you did not use the CCB but instead opted for federal court. When you appeal a case that is originally filed in federal court, the court is able to review a broader number of considerations, including errors of law and fact. Federal review of CCB decisions, on the other hand, is more limited. The reason for this difference is that the benefits of participating in a CCB proceeding would be seriously reduced if the parties had to engage in more extensive litigation in federal court after the end of CCB proceeding. When considering whether to bring a case or defend against a case in the CCB, it is thus important to consider the differences in the types of appeals.

What will happen if a party doesn’t comply with a CCB order to pay damages?

If the CCB orders a party to pay damages but the party does not do so, the party that was awarded damages will be able to ask a federal district court to confirm the award and enter judgment against the party that owes damages.

Will the CCB have any protections against abusive actors?

Yes. The CCB will have multiple tools for preventing abuse including: requiring bad faith parties to pay the other party’s reasonable costs and attorneys’ fees up to a certain amount; banning bad faith parties from the CCB for a year; and dismissing all of a bad faith party’s pending claims (unless the other party disagrees). The Copyright Office may issue regulations further explaining these provisions and limiting the number of cases that can be filed by a single party within one year.

See the FAQs on the Copyright Office's website.

For more information, check out this article on copyright law

and learn how it applies to you and your photography business.

PPA members can also access copyright resources included in their membership.