Friday, January 27, 2017

REMINDER: Protect Your Copyrights: Respond to this Library of Congress Survey

The survey is short. Only a few words to say about yourself and 3 questions to answer. And if you don't have the time to write, you can copy and paste our suggestions.

Please take a minute, go to this link and fill in the boxes.


A. In response to the 3 questions, here are some suggested answers.


         

B. In response to Item 4, you can upload additional comments as a pdf. Consider identifying yourself as a creator (and not a user) and make a personal statement:
Date

Librarian of Congress Dr. Carla Hayden

Library of Congress
101 Independence Ave SE,
Washington, DC 20540

I am a professional freelance artist and small business owner. I've been in business for ___ years. I specialize in _____. I am wholly responsible for all my business and overhead expenses. I pay my own insurance premiums and health care expenses. I fund my own retirement plans and have no other safety net. I earn my entire income from the licensing of my copyrighted work, so it is critical for my ability to stay in business that the US continue to provide creators with the full protections of existing copyright law.


My copyrights are my work product and my work product is my livelihood. I have experienced massive copyright infringement for the last two decades, by publishers and "advocacy organizations" who claim reprographic royalties earned by my work, by publishers who engage in unauthorized sublicensing behind subscription walls, and by infringers who steal online images.
The next Register should uphold Berne, and wholly support the efforts of illustrators to be safe-guarded by a functioning US visual art collecting society that protects the commerce of our secondary rights both domestically and overseas, and directs the secondary rights revenue stream of earned royalties to the illustrators who created the work.

Respectfully submitted,

_________________________________________________

If you've missed our previous alerts, here's the story in a nutshell: Dr. Carla Hayden, the new Librarian of Congress, has fired the head of the Copyright Office and is now soliciting advice on the "knowledge, skills and abilities" people think the new Register should have.

It has been widely reported that Dr. Hayden supports the agenda of the "open source" lobby. So if past is prologue, these anti-copyright interests will use this survey" to gin up an astroturf response from their supporters, then take the results to Congress to claim that the American people want work on the Internet to be free.

To counter the lobbying tactics of Big Internet firms, creators must respond to this survey in force with a call to retain the full protections of copyright as provided for in Article I Section 8 of the Constitution.

PLEASE DON'T WAIT UNTIL THE DEADLINE. DO THIS TODAY.

Monday, January 16, 2017

Suggested Survey Responses to Librarian of Congress



Here is a sample response to the Library of Congress survey regarding a new Register of Copyrights. If you care about protecting your work, it's important that you respond to the survey by January 31. To do so, simply go to this link and answer in the boxes provided. 

Your opinions would be most valuable if stated in your own words, but please feel free to use our comments, either as a template for your own; or you may simply copy and paste them in the appropriate spaces.


1. What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights?

An unbiased Register of Copyrights should:

Understand the need to protect copyrighted material as the private property of creators.

Understand that copyright protections afforded creators DO NOT rob the public of an imaginary entitlement.

Understand and appreciate that most creators are small business owners who operate in a business world in which large content firms enjoy unequaled bargaining power.

Understand that corporations don't create; individuals do.

Understand that copyright  protects both the business interests of professional creators and the personal privacy rights of all citizens.

Understand that copyright is a human right– not one bestowed by government – as codified in Article 27 of the Universal Declaration of Human Rights and that all creators therefore enjoy "the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [or she] is the author."

Understand that creators are individuals who lack the lobbying resources of large corporations with multi-million dollar lobbying budgets and full time lobbyists.

Recognize and appreciate that Article 1 Section 8 of the Constitution specifies that creators enjoy copyright as an "exclusive right" and does not contain any provision for creating new rights for users by means of statutory legislation.

Understand that any effort to curtail the "exclusive rights" of creators, as defined by Article 1 Section 8  would degrade that Constitutional right to a non-exclusive right and would therefore be UNconstitutional.

Recognize that any effort to re-introduce mandatory registration (even as a de facto requirement)  would create an impossible burden of compliance on creators and  result in millions of managed copyrights falling through the cracks and into the public domain.

Refrain from recommending any ex post facto copyright legislation to Congress: any laws applied retroactively to work created under existing copyright law would only create massive uncertainty in commercial markets, invalidate contracts past and present, and therefore harm creators and clients alike.

An unbiased Register should NOT be a former lobbyist, lawyer, law professor, etc. associated with big internet firms or with institutions that receive or have received funding from such firms.

An unbiased Register should NOT have lobbied for orphan works legislation, open source content or been associated with firms that have lobbied for those interests.

A Register should guarantee that any legislation the Copyright Office recommends to Congress fully pass the Three Step Test of the Berne Convention and international copyright-related treaties; i.e: 

Any exception to an author's exclusive copyright should be limited to
a.) certain special cases, provided
b.) that such reproduction does not conflict with a normal exploitation of the work and
c.) does not unreasonably prejudice the legitimate interests of the author."


 2. What should be the top three priorities for the Register of Copyrights?

1. End work-for-hire abuses by corporations which use their superior bargaining power to forcibly acquire copyrights from creators as a pre-condition of doing business.

2. Correct the current orphan works lobbying effort to insure that only work which has been truly abandoned by creators will be affected by orphan works legislation.

3. Recommend to Congress that it pass the legislation previously introduced as H.R.1881, The American Royalties Too Act of 2015, providing visual artists with the means to manage their secondary rights collectively, collect royalties currently lost from blanket licensing schemes, and obtain royalties from the re-sale of original works.



3. Are there other factors that should be considered?

We believe that the new Register of Copyrights should have a creator's business background for the following reasons:

a.)  Article I Section 8 of the Constitution defines copyright as the exclusive right of creators and does not mention users at all.

b.)  Corporate interests have the resources to retain full-time lobbyists, publicists, funded academics, etc. to lobby government on behalf of their interests;  a Register with a creators business background would partially redress that profound economic imbalance.

c.)  The digital world has created unique business challenges for creators. We deserve the time to adapt our business models to this new environment and not have business models imposed on us by people with no practical business experience or concern for our interests.

d.) Lawmakers and civil servants have neither the time nor the expertise to devise business models for the myriad business interests of creators; and those recommending legislation have frequently shown little or no interest or willingness to learn.

A Register would do well to understand the principle made famous in the timeless economic fable "I Pencil," which details the complexity of creating something as simple as a common lead pencil and stresses that none of the business interests necessary for its manufacture and marketing have sufficient knowledge of that complexity to mastermind its creation:

"The lesson I have to teach is this: Leave all creative energies uninhibited. Merely organize society to act in harmony with this lesson. Let society's legal apparatus remove all obstacles the best it can. Permit these creative know-hows freely to flow. Have faith that free men and women will respond to the Invisible Hand. This faith will be confirmed. I, Pencil, seemingly simple though I am, offer the miracle of my creation as testimony that this is a practical faith, as practical as the sun, the rain, a cedar tree, the good earth."

Librarian of Congress Seeks Input on Register of Copyrights

Sorry folks, another copyright deadline looms and those of us who care about protecting our work have until January 31 to respond to the survey posted here by Dr. Carla Hayden, the new Librarian of Congress.

The last we heard from Dr. Hayden, she had just unceremoniously sacked Maria Pallante, the Register of Copyrights. Now she "invites the public to provide input" to her on "the knowledge, skills and abilities" required for Pallante's replacement.

Dr. Hayden is commonly understood to believe that copyrighted work should be "as widely accessible as possible." As Peggy McGlone writes in The Washington Post:

"[P]ersonnel changes are not uncommon when a new leader comes in, [but] many in the creative industries interpret Hayden’s move — made six weeks after she took office — as proof of her anti-copyright bias. They say Hayden’s library background aligns her with Google, which owns YouTube, the source of many claims of copyright infringement."

 "[Hayden] has a long track record of being an activist librarian who is anti-copyright and a librarian who worked at places funded by Google," says Don Henley of The Eagles:

"There's a mind-set that the digital giants have fostered that everything on the Internet should be free…When they say they want free and open access, that's code for 'We want free content.'"

As we've seen in the past, the anti-copyright lobby has the resources to gin up an "astroturf" response to such "surveys." They can then use that "response" to go to Congress to present their case for free content as "the will of the people."

To counter this lobbying tactic, creators must respond in force with a call to retain the full protections of copyright as articulated in Article I Section 8 of the Constitution.

Please take the time to go to the Library of Congress survey website and respond to Dr. Hayden's three questions.

1. What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights? 

2. What should be the top three priorities for the Register of Copyrights?


3. Are there other factors that should be considered?

We will provide some sample answers tomorrow.

Thursday, October 27, 2016

About the Copyright Office Coup


"Days after U.S. Register of Copyrights Maria Pallante was moved out of her job...lawyers and lobbyists are still trying to figure out what happened, as well as what it means for the future," according to a Tuesday update by Robert Levine in Billboard

It also suggests, as many here have speculated, that Pallante's "sudden removal [by Dr. Carla Hayden, newly-appointed Librarian of Congress] could suggest a more skeptical view of the value of intellectual property in Washington DC."

"'People I know who care about copyright are very disturbed," says Marybeth Peters, Pallante's predecessor as Register, who held the job from 1994 to 2010. "Nothing like this has ever happened there before.'"

Billboard confirms that "Pallante...was locked out of the Library of Congress computer system [on Friday], a step that several former Copyright Office staffers say is extremely unusual."

Pallante refused a subordinate "reassignment" to serve under Hayden and submitted her resignation Monday, October 24.

Billboard notes that various lawmakers involved with drafting copyright policy have expressed "concern" and "implied" "displeasure" about the coup, but states that "Public Knowledge, a nonprofit organization that receives some of its funding from technology companies, tweeted that this represents 'a great opportunity to bring balance to the [Copyright] Office's policy work.' " As the website Trichordist has previously reported, "in the last two months the main Google mouthpiece in Washington DC Public Knowledge has been clamoring for her [Pallante's] head."

For over a decade the Illustrators Partnership has been warning that the lobbying effort by Big Tech companies to "bring balance" to copyright "policy" is, in fact, "a proposal for a radically new copyright law," as we said in our Senate testimony April 6, 2008.

 The goal of copyright "reformers" has been to invert the premise of copyright law, making public access to creators' work the law's main function, and requiring creators to register each and every work they wish to retain any commercial or personal interest in.

The Billboard article suggests that the new Librarian of Congress may share this ideological goal:

"Although Hayden spoke about the importance of copyright during her confirmation hearings, she is perceived to favor looser copyright laws, since she previously served as president of the American Library Association, an organization that lobbies for greater public access to creative works, sometimes a[t] the expense of creators. The Obama Administration also has close ties to technology companies, which would like to see a Copyright Office that values fair use and other exceptions to copyright over the rights of creators and copyright owners."

To read the full Billboard article, go here.

Saturday, October 22, 2016

Head of US Copyright Office Removed

Friday morning, the head of the US Copyright Office was removed in a surprise action by the newly-appointed Librarian of Congress.

According to the entertainment industry newspaper Variety:

"Maria Pallante is out at [sic] the U.S. Register of Copyrights and is moving to a new post, a Friday announcement that was met with surprise by trade associations and other groups in Washington. The change was made by Carla Hayden...who was only recently confirmed as Librarian of Congress."

"Pallante was locked out of her computer [Friday] morning," reports Billboard, citing "two sources who spoke with Library employees."

"Earlier, Hayden had called several members of Congress to tell them about her decision. Later, she called the heads of several media business trade organizations to give them the news, according to one who received such a call...Hayden, as the librarian of Congress, has the authority to make a new appointment without congressional review."

The website Trichordist: Artists for an Ethical and Sustainable Internet warns that:

"These are dark days for all creators and copyright holders.  After a two month campaign by Google funded astroturf group Public Knowledge, the newly appointed librarian of congress Carla Hayden [an advocate of "open sourcing] has fired Maria Pallante the register of copyright. Pallante was the only one standing between Google and what is left of the copyright system.

"This firing is virtually unprecedented in US history. The Librarian of Congress generally leaves the Register of Copyrights to run the affairs of the copyright office. However in the last two months the main Google mouthpiece in Washington DC Public Knowledge has been clamoring for her head."

More details at Artist Rights Watch.

Monday, December 28, 2015

Best Wishes for a Happy and Successful New Year

At the end of an extraordinary year, we'd like to extend our best wishes to all of you for a happy and successful new year and to say thanks again to everyone who joined us last summer in writing the US Copyright Office.

Between the initial letters and the reply comments - nearly all of which opposed orphan works legislation - illustrators generated more than 10 times the total number of letters on which the original orphan works proposals were based. In a just world that should be enough to stop the anti-copyright movement; but unfortunately, there are powerful corporate interests lobbying for its passage and if we hope to retain the protections of current copyright law we'll have to continue to rely on our energy, our will and the justness of our cause to persuade lawmakers.

In addition to thanking all of you who wrote letters - many of which were exceptional - we'd like to give special thanks to the 12 illustrators organizations who have steadfastly supported our effort. Those groups are listed, along with their logos, below.

Additional thanks go to artists Will Terry, whose YouTube seminar gave us access to his audience, and to Glenda Rogers, whose idea it was to connect us with Will. Nearly 100,000 viewers saw our message that way and there can be no doubt that it played a key role in generating such a significant response on such short notice.

The effort to undermine copyright law now moves into Congress and in the coming year we'll have to turn our attention there. But for now, it's time to just say thank you and wish all of you the best for 2016.


Friday, October 16, 2015

Google Prevails in Copyright Lawsuit


Today, the Second Circuit Court of Appeals released its ruling in Authors Guild v. Google, and all artists could be affected by its outcome.

Four years ago, the Google Book Search Settlement was thrown out of court on the grounds that neither the Authors Guild nor Google, the two parties to the agreement, had legal standing to carve up the exclusive rights of the world's authors. In his ruling, Judge Denny Chin wrote that it was for Congress, not the courts, to decide on the future of copyright law.



Since then, however, the courts have been chipping away at the traditional understanding of what copyright means, expanding the scope of what's called “fair use,” that is, how much someone can use of your work without your permission.



Today an appeals court ruled in Google's favor, according to an online article in Fortune.

“It’s finally over. An appeals court confirmed that Google’s scanning of more than 20 million books counts as fair use.

“It’s been ten years since authors first sued Google over the decision to scan millions of books, but now an appeals court appears to have confirmed once and for all the scanning did not violate copyright law.”

To be clear, this does NOT directly affect the new orphan works legislation currently being considered by Congress. But it's a safe bet that corporation lobbyists will use it to argue that the decision paves the way for it. Remember that the orphan works proposals now before Congress would permit the commercial infringement of any work orphaned by the law.

“Friday’s appeals court ruling is significant because it clears the legal uncertainty that has been hanging over Google for a decade, and also because it provides more guidance on what qualifies as fair use in a digital age.

“In particular, the court states on several occasions how copyright law represents a balance between authors and the public, and points out how many forms of fair use are partly commercial.” [Emphasis added.]

The Authors Guild has announced that it plans to appeal to the Supreme Court:

“We are disheartened that the court was unable to comprehend the grave impact that this decision, if left standing, could have on copyright incentives and, ultimately, our literary heritage. We trust that the Supreme Court will see fit to correct the Second Circuit’s reductive understanding of fair use, and to recognize Google’s seizure of property as a serious threat to writers and their livelihoods, one which will affect the depth, resilience and vitality of our intellectual culture.”

Thanks to all of you who wrote the Copyright Office this summer, and let's all buckle our seatbelts. We could be in for a bumpy ride.

 If you haven't already read the letter 12 artists organizations submitted to the Copyright Office two weeks ago, it's here.

We also submitted two other letters challenging the constitutionality of the proposed legislation:

IPA Initial Comments: Because Article 1, Section 8 of the Constitution grants authors the exclusive rights to their work, it is our understanding that those rights cannot be abridged without a constitutional amendment.

IPA Reply Comments: “Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.” – James Madison