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3/30/2006
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Content Creators Speak Up On Small Copyright Claims

Illustrators, photographers, writers, and representatives of the music industry appeared before a House subcommittee to address alternatives to the current system.

Individual creators should be protected by any changes to laws covering small copyright claims, according to witnesses who testified Wednesday in a congressional hearing on the subject.

Representatives of the music industry, illustrators, photographers and writers appeared before the U.S. House Subcommittee on Courts, the Internet and Intellectual Property to address alternatives to the current system.

Subcommittee Chairman Lamar Smith said that most owners of intellectual property don't sue for small claims because it can cost $5,000 to hire a lawyer for $500 worth of damages and defendants frequently fail to pay up.

"Absent an effective remedy, many copyright owners with low value infringement claims view this disparity as a 'get out of jail free card," he said during the hearing. "This issue appears most often in the context of certain categories of users where the amount of damages is often low. These categories of works include photographs, illustrations, graphic arts, short stories and articles."

Smith said films and musical compositions are more likely to have larger value infringement claims, meaning it's more sensible for people in those industries to hire lawyers.

Alternatives to the current exclusive federal court jurisdiction could include the use of state courts, specialized federal courts, a copyright royalty board, administrative law judges or collection of small claims into large filings brought by trade associations, Smith said.

Paul Aiken, who spoke on behalf of the Authors' Guild, said that a small claims court for copyright infringement would allow greater access to the court and increase copyright protections. He said that rejection of frivolous, harassing and unfounded claims and those for which a substantial fair use defense is raised would speed court proceedings and allow the proceedings to be conducted largely by mail and phone.

"Affiliation with the Copyright Office would assure the court's competence in copyright law," he said. "Finally, granting the court limited power to use injunctions would greatly and reasonably strengthen the court."

Jenny Toomey, executive director of the Future of Music Coalition said transparent, publicly-accessible databases make it easy to obtain licenses, which in turn makes more money flow into artists' hands.

"It is unclear to FMC whether litigious, penalty-focused solutions would be more effective at compensating artists than solutions focusing on authentication and inexpensive licensing structures," she said.

Brad Holland, founding board member of Illustrators' Partnership of America, was also less than enthusiastic about taking the issue to small claims courts.

"Creating a new form of legalized infringement without statutory remedies – even for registered copyrights – and offering a small claims court as a solution to the wave of infringements that will result, is not a workable approach," he said. "It will only serve to legitimize the taking of our copyrights."

Victor Perlman, general counsel and managing director of the American Society of Media Photographers, said photographers are uniquely disenfranchised from copyright protections to which they are entitled.

"Anything that this Committee can do to help correct that situation would be of great benefit to photographers and greatly appreciated by them," he said. "Perhaps more importantly, this is one of those all too rare situations where Congress can really do "the right thing" to help the little guy, and make our legal system move a bit closer to a system of justices, not just of laws."

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