Copyright and Fair Use: Copyright Claims Board

ILLUSTRATIVE EXAMPLES:

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:

• The costs and processes for filing suit in federal court are much more complex that proceeding before the CCB. If you opt out, the copyright holder may not want to incur the expense of proceeding in federal court if their case is not very strong. 
• If your institution is a state institution, you may be entitled to greater protection in federal court, which may deter a copyright holder from filing suit there should your library opt out of CCB proceedings. 
• If the copyright holder does sue you in federal court and ultimately wins, you may have to pay a higher amount than you would have to pay if it won before the CCB.

If you do not opt out within 60 days: 

• The case will proceed before the CCB. The case will be decided by claims officers of the CCB, not by a judge or jury. The CCB predicts that most cases will be handled completely online.
• You will be bound by the CCB’s decision. If the copyright holder wins, it will be awarded damages up to a maximum of $30,000 per case. 
• CCB determinations are final. There are only limited circumstances — such as fraud, corruption, or misrepresentation — when a CCB determination can be reviewed by a federal court or the Copyright Office.
• If you don't participate in the CCB proceeding, it will be held without your or your institution's involvement so long as you have been provided sufficient notice. The CCB may enter a default judgment and order payment of the maximum award of damages. 

If you decide to opt out, you must:

• Complete and return the paper opt-out form provided with your notice, or complete an online opt-out form on the CCB website, within 60 days of receiving the notice.

• Copyright Claims Board FAQ - https://ccb.gov/faq/
• List of Libraries and Archives that have Opted Out - https://ccb.gov/libraries-archives-opt-out/
• CCB Opt-Out Form for Libraries and Archives - https://ccb.gov/libraries-archives-opt-out/images/opt-out-form.pdf
• ARL Case Act Toolkit - https://www.arl.org/case-act-toolkit/
• UC Berkeley Small Claims Resource - https://www.lib.berkeley.edu/research/scholarly-communication/copyright?section=small-claims

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.