U.S. Copyright Office Publishes Federal Register Notice Announcing State Sovereign Immunity Study

By Rebecca Tapscott
June 5, 2020

On June 3, the U.S. Copyright Office published a Federal Register notice regarding a study it is initiating to “evaluate the degree to which copyright owners are experiencing infringement by state entities without adequate remedies under state law, as well as the extent to which such infringements appear to be based on intentional or reckless conduct.” The Office requested public input in the form of written comments on or before August 3, 2020 to assist the Office in preparing a report to Congress on the study.

The doctrine of sovereign immunity sets forth that “a federal court generally may not hear a suit brought by any person against a nonconsenting State.”  However, in November 1990, the Copyright Remedy Clarification Act (CRCA) amended the Copyright Act to expressly provide that states are not immune from suit for copyright infringement. Earlier this year the Supreme court, in Allen v. Cooper, held that “Congress lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA”, and, therefore, CRCA lacked a valid constitutional basis.  Thus, there has been concern from copyright owners that they may not be able to seek the remedies provided by the Copyright Act if they suffer infringement by state entities.

On April 28, 2020, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) sent a letter to the Office noting that Allen v. Cooper has ‘‘created a situation in which copyright owners are without remedy if a State infringes their copyright and claims State sovereign immunity.”  The Senators also expressed concern “about the impact this may have on American creators and innovators.’’ The study announced in the present Federal Register Notice is in response to the Senators request for the Office to study “the extent to which copyright owners are experiencing infringements by state entities without adequate remedies under state law”, with particular focus on whether such infringements are “intentional or based on reckless conduct.”

The Federal Register Notice requested that individuals submitting comments explain their interest in the study and provide information on some or all of the following subjects: 1) specific instances of infringement by a state or state entity, 2) the extent to which state sovereign immunity affects licensing or sale of copies of copyrighted works to state entities, 3) remedies available to copyright owners who are experiencing infringement by a state, 4) metrics that can be used by Congress to determine if a state’s infringing acts are common or infrequent, 5) whether the instances of infringement by states has been on the rise in recent years, 6) information regarding how different states handle claims of infringement, and 7) identification of any other pertinent issues that the Office should consider. Specific instructions for submitting comments are available on the Copyright Office website.

The Author

Rebecca Tapscott

Rebecca Tapscott is an intellectual property attorney who has joined IPWatchdog as our Staff Writer. She received her Bachelor of Science degree in chemistry from the University of Central Florida and received her Juris Doctorate in 2002 from the George Mason School of Law in Arlington, VA.

Prior to joining IPWatchdog, Rebecca has worked as a senior associate attorney for the Bilicki Law Firm and Diederiks & Whitelaw, PLC. Her practice has involved intellectual property litigation, the preparation and prosecution of patent applications in the chemical, mechanical arts, and electrical arts, strategic alliance and development agreements, and trademark prosecution and opposition matters. In addition, she is admitted to the Virginia State Bar and is a registered patent attorney with the United States Patent and Trademark Office. She is also a member of the American Bar Association and the American Intellectual Property Law Association.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

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  1. Anon June 5, 2020 1:03 pm

    As I noted at the time, the Allen v Cooper decision literally opened a free-for-all by ALL State actors (including — especially — State-employed teachers.

    I did get some (minor) pushback, but Sen. Tillis’s words vouch for the position that I advanced.

    However, what his call fails to recognize is that this new realization (given the pandemic) is LIKELY not to have yet reached even a remote portion of its potential impact.

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