Following multiple extensions of the notice and comment period for the establishment of the Copyright Claims Board under the CASE Act, the Copyright Office has published its highly anticipated final rule for the initiation of proceedings before the Board. The CASE Act establishes a voluntary forum, the Copyright Claims Board, in which parties can resolve disputes valued at $30,000 or less and has been heralded as ideal for pro se copyright holders.
The final rule establishes the procedures and requirements for the initial stages of a proceeding, including filing, opt-out, compliance review, notice, service, responses, and counterclaims. The Copyright Office highlights that the final rule institutes a two-part fee for filing a claim; standardizes requirements for the claim, response, and counterclaim; and requires certifying parties to affirm that they have confirmed the accuracy of information in the claim. A few key provisions that are demonstrative of the apparent goal of accessibility are set forth below.
Bifurcation of Fee Payments
Perhaps the most pro-claimant procedural rule is the two-tiered fee schedule for the initiation of proceedings. The proposed rule initially included a $100 filing fee, but the new rule creates a "deposit" structure in favor of greater accessibility. Claimants will now pay a $40 initial filing fee, with the remaining $60 due only if the proceeding becomes active before the Board. Much as in federal litigation, there will be no fee for counterclaims.
Binding Proceeding Opt-Outs
The rules establish that opting out of the proceeding will result in a dismissal of the claim without prejudice, and that recission of the opt-out is unavailable to respondents who choose to opt out of the proceeding. This means respondents may opt out of a Copyright Claims Board proceeding, but they cannot later change their minds. This may incentivize respondents to resolve their claims before the Board to avoid the risk of greater exposure before a federal court. Notably, the rules do not permit claimants to opt out of counterclaims.
Second Bite for Authors
The initial proposed rule prohibited the refiling of a claim before the Board following an opt-out. The final rules have done away with this prohibition and allow for the refiling of a claim against a respondent who has previously opted out, if both parties consent to the refiling of the claim. This gives authors a second bite of the apple, enabling them to reach a low-cost resolution to copyright disputes, and restarts the opt-out process for respondents who may regret their initial decision to opt out of the original proceeding.
The Copyright Office is expected to publish its final rules regarding active proceedings and evidence before the Board soon, and claimants will be able to begin filing claims before the Board later this spring.
