New Study Highlights Challenges Facing Copyright Claims Board

A new study examines the Copyright Claims Board’s (CCB) first two years and highlights its challenges and accomplishments in that time.

Katie Fortney, Copyright Policy & Education Officer at California Digital Library, and David Hansen published the study in the Journal of the Copyright Society. However, an open-access version is available on the University of California eScholarship website.

The study examines the outcomes of all 880 cases filed with the CCB in the first two years and compares those outcomes to the arguments both for and against the CCB. It found that, while fears about the board did not come to pass (at least not yet ), it failed to achieve its stated goals.

The report highlights the struggles of self-represented claimants, the high cost of operating the CCB and the length of cases. However, the report also notes that fears of “copyright trolls” abusing the CCB did not come to pass, at least not in large numbers.

The report paints a much more nuanced image of the CCB than the data it released last month.

In doing so, it highlights areas for potential weakness of the board as it exists today. As such, it’s worth examining both the data and the conclusions drawn, as it may provide guidance for the future of the CCB.

Key Findings

The Copyright Claims Board launched in June 2022. As such, this study covers the period between then and June 2024. During that time, claimants filed 880 cases with the board.

Of those cases, the CCB closed nearly three-quarters, 655, before they reached the active phase. Another 111 cases were still open but not active. Only 114 cases were either active or closed after being active.

The most common reason for cases to be dismissed was that they were not compliant: 333 cases. Another 137 were deemed compliant, but the claimant failed to serve the respondent. In 86 cases, the respondent opted out, and another 74 were closed at the claimant’s request.

One of the most significant differences was in cases filed with the aid of a lawyer or legal representative versus self-filed cases. Ninety percent of represented claims were certified as compliant, but self-represented claimants were only successful 46% of the time. However, unrepresented claims comprised 75% of all claims filed.

After claims reached the active phase, the most common outcome was for the respondent to default. These are cases where the respondent did not opt-out but also did not participate in the case. Default determinations make up over half of all the determinations by the CCB (14).

Of the contested cases, six ended in a final determination, five were settled, and one was dismissed.

The Study’s Conclusions

In her “Lessons Learned” section, the authors highlighted several conclusions they drew from the data.

1. Defaults are a Concern: Though the CCB has rejected or partially rejected default claims at least three times, the authors are concerned by the high number of defaults.
2. Issues Facing Unrepresented Claimants: Despite the best efforts of the CCB, the authors fear that it (or copyright in general) is too complicated for most unrepresented claimants. The high dismissal rate, despite multiple opportunities to remedy claims, points to serious issues in getting unrepresented claimants to the active phase.
3. The Process is Slow: The average time between filing and final determination is 413 days, well over one year. The five contested cases that reached a final determination were 546 days.
4. The Cost of Operation: Though the CCB is inexpensive for respondents, the system costs $2.2 million per year to operate. That total of $4.4 million in two years equals approximately $5,000 per claim filed. The CCB has only awarded $58,150 in final determination so far.

Based on these and other issues, the authors conclude, “Complex copyright disputes are ill-suited for a self-service small claims tribunal.”

While I understand that perspective, I don’t take it quite as far. I agree there is room for improvement, but I still think the CCB can be helpful in many cases.

My Thoughts

The study illuminates several issues the CCB is facing, most notably the number of rejected claims. Based on the data, simple tweaks to the system may be able to drastically reduce that number.

One approach the authors highlighted was to make it possible to register a work with the Copyright Office while they’re filing a claim. The CCB dismissed over 175 claims over registration issues. This approach could eliminate that issue.

The second would be to more clearly spell out the elements of a copyright infringement claim while filing the claim. According to the study, failure to state facts relating to substantial similarity and access to the original work contributed to 110 rejections each in the first year alone.

The claim form currently asks users to “describe the infringement.” While the tooltip above spells out what should be in that description, there’s no reason these elements can’t be separate boxes.

In short, this would make it impossible to submit a claim without providing this information.

While this can’t and won’t fix every problem with the CCB, a little additional hand-holding could go a long way.

Bottom Line

In the end, I agree that the CCB is a flawed institution that has neither lived up to its hype nor become what many have feared. However, two years is an early point to judge such an institution, a point the authors agree on. Right now, the board and its filers are still finding their footing.

However, it is far enough along that the board should be finding ways to improve known issues.

For me, this would include reducing dismissed claims, further expediting the process, and determining the cause of defaults.

The CCB can be a valuable tool for addressing some copyright issues. Right now, however, due to the cost of litigation, many rightsholders are unable to protect their work and have been fully disenfranchised from the copyright system.

Though the CCB is an imperfect way to give them access to those protections, it’s better than the alternative.

But that doesn’t mean the system shouldn’t grow, change and improve. Building the CCB should be an iterative process, and the time for the first iteration is now. The data is in, the issues are apparent, and the question is: How do we address them?