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Copyright Alliance Comments Spotlight Infringement by States

The summer, the Copyright Office put out a Notice of Inquiry (NOI) on state sovereign immunity, the legal doctrine which protects states from civil lawsuits. The NOI asked stakeholders to weigh in on the extent to which state agencies are engaging in copyright infringement. In response to that request, the Copyright Alliance surveyed copyright holders and creators from various industries and reported their findings in Comments they submitted to the Copyright Office. Those findings show an ongoing and pervasive pattern of copyright infringement by states.

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The Need for the Study

In the 1990s, to address copyright infringement by states, Congress passed the Copyright Remedy Clarification Act of 1990 (CRCA). CRCA amended Federal copyright law to hold states as liable for copyright infringement as non-governmental entities. However, by the end of the decade, the constitutionality of CRCA was challenged. Earlier this year, in Allen v. Cooper, the Supreme Court unanimously ruled that provisions of the Copyright Act do not abrogate (or do away with) the states’ sovereign immunity when it comes to copyright infringement lawsuits. However, the decision pointed out that Congress could pass a “valid copyright abrogation law,” one which would link the scope of abrogation to the prevention of unconstitutional state conduct.

In response to that Supreme Court ruling, the Senate Judiciary Committee sent letters to the Copyright Office and the Patents and Trademarks Office asking them to initiate studies on the extent to which intellectual property owners are experiencing infringements by states and their agencies. In undertaking its study on state sovereign immunity, the Copyright Office issued the NOI, asking “the degree to which copyright owners face infringement from state actors today, whether such infringement is based on intentional or reckless conduct, and what remedies, if any, are available to copyright owners under state law.”

“Thousands of Instances of Infringement”

The survey conducted by the Copyright Alliance incorporated many of the questions in the NOI. From the survey responses, the Alliance calculates that creators and copyright owners have encountered thousands of instances of infringement by state entities, resulting in lost revenue of countless millions of dollars.” Of the respondents to the survey, 115 experienced copyright infringements by states, and most reported multiple violations. A wide range of creative works were infringed: mostly books and photographs, but also audio recordings; audiovisual works such as TV shows, movies, and videos; publications such as newsletters and magazines; databases; graphic works such as paintings, design, and illustration; sculpture; choreography; jewelry and fashion designs; etc.

Some takeaways from the Copyright Alliance survey:

  • Copyright infringement was reported by all 50 states, with Texas, California, and New York being the worst offenders
  • A number of state agencies engaged in infringement: mostly state universities and educational institutions, but also tourism boards, museums, departments of natural resources, hospitals, visitor centers, and other agencies.
  • Over half of the respondents reported that the infringement was intentional. Respondents described how their copyright management information was removed, lawyers’ letters ignored, or work was used after the license had expired. .
  • The number of infringements per year has increased steadily from the mid-1990s, with the number of reported infringements more than doubling since 2000, the year in which the validity of CRCA was challenged.
  • Of the respondents who contacted the infringing state agency, most reported that they were not taken seriously or they were outright ignored, and the infringement continued.

As states are knowingly infringing copyrighted works, they are also availing themselves of the protection afforded by the copyright system. The Alliance conducted a keyword search of the Copyright Office’s public database of copyright registrations. The search pulled up tens of thousands of works registered by the states of New York, Texas, and California alone. In their Comments, the Alliance suggested that states seeking to register their copyrights should be required to waive sovereign immunity in copyright cases.