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IP Law Daily, COPYRIGHT NEWS: So far, so good on copyright small claims tribunal, Register tells Senate panel, (Sep 9, 2022)

Organizations Mentioned:Register of Copyrights

By Matthew Hersh, J.D.

The Register also weighed in on the pending Warhol v. Goldsmith case.

A new tribunal established within the Copyright Office this summer to process low-dollar copyright lawsuits is moving “efficiently” to process the nearly 130 claims th ...

By Matthew Hersh, J.D.

The Register also weighed in on the pending Warhol v. Goldsmith case.

A new tribunal established within the Copyright Office this summer to process low-dollar copyright lawsuits is moving “efficiently” to process the nearly 130 claims that have been filed with the tribunal, Register of Copyrights Shira Perlmutter told a Congressional panel yesterday. The hearing before the Subcommittee on Intellectual Property within the Senate Judiciary Committee also covered a wide range of other topics, including the subject of expanding public performance rights for sound recordings and the Office’s recent submission to the Supreme Court on the pending fair use case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, Dkt. No. 21-869.

The hearing before the Senate committee—the first oversight hearing of the Copyright Office since 2019—gave Register Perlmutter an opportunity to brief Senators on recent accomplishments and current projects of the Copyright Office. In her written statement Perlmutter underscored the Office’s efforts in launching the small claims tribunal known as the Copyright Claims Board, or CCB, within “a tight statutory time frame.” She noted that over the course of fifteen months, beginning early 2021, the Office published fifteen Federal Register notices, finalized the CCB’s regulatory framework, and hired the claims officers, four attorneys, and support staff. While pleased by the number of cases that have been filed so far—some 62 percent of which, she noted, were brought by parties without attorneys—Perlmutter acknowledged that it was “still too early to know how many respondents will choose to participate or opt out of the proceedings.” (The possibility that respondents might opt out, and thereby force litigants to abandon their case or file it in the federal courts, has been a particular concern for critics of the Board.)

The Register also commented, in response to questions from the panel, about the Solicitor General’s recent amicus brief on behalf the Register in support of photographer Lynn Goldsmith in the pending Supreme Court case of Warhol v. Goldsmith (Disclosure: this author also submitted an amicus brief, on behalf of a California photographer and photography licensing expert, in support of the photographer.) In that case, the foundation that currently holds the rights to Andy Warhol’s work has contended that Warhol’s unlicensed revision of a Goldsmith photograph of Prince constituted fair use because his revision altered the original with a “new expression, meaning, or message.” In response to questioning by Senator Marsha Blackburn (R-Tenn.), Perlmutter cautioned against interpreting transformative use too broadly, noting “it could undermine the existence of the derivative work right in copyright law.”

Perlmutter’s written testimony also touched on the following points:

·The Music Modernization Act, or MMA: According to Perlmutter, the Office has fully implemented all regulations to that Act, including the new blanket mechanical license as well as rules involving pre-1972 sound recordings. The Office is engaged with the new Mechanical Licensing Collective, or MLC, established in that Act, as well as various music stakeholders “to obtain feedback and updates on the MLC’s operations and how the MMA is working.”

·Rulemakings: In addition to rulemaking to implement the small claims tribunal, Perlmutter also discussed other regulations that the Office has issued, including a rule liberalizing the deposit requirements for registering a single issue of a serial publication and a rule establishing fourteen new or expanded exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works.

· Additional legislative proposals: Perlmutter’s testimony highlighted the Office’s many policy recommendation over the past several years, including updating the exceptions for libraries, archives, and museums in section 108; requiring radio stations to provide fair compensation to copyright owners and performers when their sound recordings are broadcast "over the air" (a subject in which she was strongly supported by Senator Marsha Blackburn during the hearing), changes to the Digital Millennium Copyright Act, and a resale royalty right for visual artists.

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