In December 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act), which empowered the U.S. Copyright Office to create the Copyright Claims Board (CCB). The CCB is a non-judicial body of the Copyright Office that is charged with deciding copyright infringement actions that do not exceed $30,000 in damages.
The CCB is an alternative to federal court proceedings; however, certain entities are exempt from proceedings before the CCB (e.g., state or governmental entities, students and employees of state and governmental entities provided that the claim involves work done in the course of their employment). Libraries and archives that may be subject to claims filed with the CCB have an opportunity to opt out of all CCB proceedings preemptively or upon receipt of a claim, and thereby force a copyright owner to file/re-file the action in federal court.
|Type of User of
|Type of Institution|
|Federal or State Government Entity
(e.g., state university)
|Library or archives||No||Yes, unless authorized signatory of the library or archives has has preemptively opted out of CCB proceedings|
|Employees of library or archives acting in the scope of their employment||No (Note - this determination of acting in the scope of employment will be determined after claim is filed.)||Yes, unless authorized signatory of the library or archives has preemptively opted out of CCB proceedings.|
|Employee of the institution while acting in the scope of their employment||No. (Note - this determination of acting in the scope of employment will be determined after claim is filed.)||Yes|
|Employees acting beyond the scope of their employment||Yes||Yes|
Library employee acting within scope of employment: Posting copyrighted content into a course management system at request of faculty.
Institutional employee acting out of scope of employment: Faculty member uploading copyrighted content to a personal website.
Students (employee but not acting in scope of employment): Graduate student is employed as a teaching assistant in field of study but the claim is about inclusion of copyrighted content in their dissertation.
Should my library opt out of CCB proceedings?
Ultimately this is a decision that needs to be made in consultation with your institution's attorneys in consideration of the regulations of the CCB and any rules or policies of your institution. Every library should weigh carefully the benefits and risks of proceeding in federal court vs. before the CCB, including whether your library is part of a state institution and institutional policy on representing or supporting library employees in legal actions. Even if your library is very small with limited staff, it is important to consider whether a preemptive opt-out would be of benefit or advantage in consideration of all factors.
Should I inform library staff and campus constituents about CCB?
It is important that library staff, who are included in the opt-out should a library decide to preemptively do so, be informed about the CCB and its processes. Further, libraries have long stood as a source of copyright education and consultation on their campuses; therefore, it is likely that you may receive questions from faculty or students about the CCB. A sample notice to library staff that you can modify and edit for your purposes is available on the ARL CASE Act Toolkit.
It is important to remember that the implementation of the CCB does not change the law or application around fair use. Fair use is still an important right available to all libraries, faculty, students, and staff and the possibility of a claim before the CCB should not dissuade libraries and the persons they serve from employing fair use where appropriate and applicable.
What if my library receives notice of a CCB claim?
If a copyright holder files a claim against a library, institution, faculty member, staff member or student, they will be officially served with notice of that claim according to the rules of service of process in your jurisdiction. The claim does not mean that infringement has been determined, only that it has been alleged by the claimant. It is important to not ignore the notice once received. You should notify your institution's counsel immediately if notice of a claim is received.
Next, you will decide whether you want to opt out of proceeding before the CCB for this particular claim (provided that your library has not already preemptively opted out of all CCB proceedings). You have 60 days to opt out in any given case. This decision should be made with the advice of legal counsel. Some considerations you and your attorney may make in weighing whether to opt out:
If you do not opt out within 60 days:
If you decide to opt out, you must:
This section of Atla's Copyright and Fair Use LibGuide is derived in part from ARL's CASE Act Toolkit and from information compiled by the scholarly communication team at the University of California Berkeley Library.
The content of this and all sections of this LibGuide are for information purposes only and should not be construed as legal advice. Libraries and other institutions are encouraged to consult with their local general counsel for advice and guidance on not just proceedings before the CCB but all other legal matters.