Monday, January 16, 2017

Suggested Survey Responses to Librarian of Congress

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 exceptions to an author's exclusive right recommended to Congress fully pass the Three Step Test of the Berne Convention and international copyright-related treaties: 

"It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in 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 forceably 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. Support visual artists' efforts to administer their visual art collecting society for their secondary rights by supporting the passage of the Resale Royalty right and establishing the distribution of domestic and international reprographic royalties to visual artists for the licensing of their previously published work.



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

Friday, October 9, 2015

ASIP Comment to Copyright Office Notice of Inquiry: Mass Digitization Pilot Program

[download the pdf]

October 9, 2015

Maria Pallante
Register of Copyrights
U.S. Copyright Office
101Independence Ave. S.E.
Washington, DC 20559-6000

RE: Notice of Inquiry, U.S. Copyright Office, Library of Congress: Mass Digitization Pilot Program (80fr32614)

Comment of the American Society of Illustrators Partnership

As board members of the American Society of Illustrators Partnership, we oppose the creation of an extended collective licensing program at this time because the current state of extended secondary rights licensing in the US raises too many unanswered questions about who is receiving artists royalties and what the money is being used for. 

Our questions start with the publisher-centric Copyright Clearance Center (CCC), which over the years has made contradictory statements about its licensing of visual art, does not pay royalties to artists and otherwise refuses to discuss the matter; and with the Authors Coalition of America (ACA), which was founded 20 years ago, apparently with CCCs blessing, but without any representation by artists. Since 2003, ACA has acted as an umbrella for various writers trade organizations, including first one, now three graphic arts groups that divide visual arts royalties from certain overseas countries among themselves. [1] Whatever arrangements these organizations have made – either to license artists work and/or to share artists royalties – they were made without the knowledge or consent of artists, and the Authors Coalition has told us that we have no standing to know how the money has been, or is being, spent by its Member Organizations. [2]

Unless something is first done to correct this preemptory collection of the earned income of American graphic artists, we fear that the imposition of extended collective licensing will only serve to institutionalize and further a system that allows third parties to profit from the growing stream of income that artists are cut off from.

Our reservations mirror those of our colleagues at the Association of Medical Illustrators (AMI) who have written:

an extended collective license (ECL) pilot program for mass digitization is premature until existing mechanisms for collective licensing are reformed. At the present time visual artists in the United States are unable – through no fault of their own – to receive any benefit or remuneration from collective licensing of works containing their copyrighted images…While these existing licenses are marketed to users as including all content, publishers actively resist any request by illustrators to receive a share of the income generated. [3]

Re-examining the Nordic Model 
We also join AMI in asking that the Copyright Office revisit its analysis of the Nordic ECL model contained in its June 2015 Orphan Works and Mass Digitization Report. 

That report mischaracterized the system currently in use in Nordic countries in failing to acknowledge that their ECLs are foundationally built on existing and trusted collective rights organizations. Henry Olsson, recognized for many years as the leading authority on Nordic copyright law, describes the basic features of an extended collective license as follows:

“‘The system presupposes that the right-owners in particular fields are grouped together in organisations that are representative in the field concerned and that are mandated to conclude contracts on their behalf.

“‘A condition for the extended license is of course that there is an agreement. That agreement must concern the use of works or other subject matter in a certain manner. The agreement must, in other words, be specific and relate to, for instance, reproduction, public performance etc. and should not be general and concern all types of exploitation of the works. That would go too far, in particular in relation to foreign or other outside right-owners who might be subjected to the terms of the agreement.

“‘The system of giving extended effect to collective agreements in certain areas is a typical Nordic way of finding copyright solutions to otherwise difficult situations of mass use of protected works and other contributions. That system presupposes of course that there is a well-developed system of organisations in the field concerned and that such organisations represent a substantial number of right-owners in the field concerned. It presupposes in other words that the copyright market is well organised and disciplined. (Emphasis added.) [4]

ASIPs Efforts to Create a Collective Licensing Mechanism
In the US, the effort to organize a collective rights organization for graphic artists began in 2000 with the Illustrators Partnership of America (IPA). By 2006, IPA had assembled an ad hoc coalition of 12 visual arts organizations, incorporated in November 2007 as the American Society of Illustrators Partnership (ASIP). ASIPs general mission has been to acquire and disseminate accurate information about artists rights to artists during the convulsive shift from a print to a digital economy. Our specific mission has been to create a legal collecting society and to create the protocols and infrastructure by which fugitive income derived from new sources of licensing artists work can be identified, collected and distributed to the proper rightsholders. Illustrators join by mandating ASIP. Membership is open to all published illustrators in the U.S.

In 2013, ASIP formalized its longstanding relationship with the Artists Rights Society (ARS), thus providing an indisputable chain of rights for the domestic and international rights clearance of mandated illustrators.

Artists Declaration of Unity
On November 2, 2006 our groups presented a White Paper  to the General Assembly of the International Federation of Reproduction Rights Organizations (IFRRO) at its annual conference in Auckland, New Zealand.  A key statement in that document specified that any prior claims made by other parties to collect artists reprographic royalties were made without the awareness or authorization of the artists these groups represented:

Our [12] organizations have not transferred our members mandate to collect print or digital reprographic rights to any other U.S. organization nor have the majority of our individual members knowingly or willingly given any U.S organization such a mandate...The Board of Governors of each organization supporting the Illustrators Partnership affirms their intent to unite to constitute the relevant rightsholder class of the reprographic rights of the American illustration repertoire of published  works. [5]

History
The members of our organizations became aware of reprographic royalties at different times, most within the last decade. However none of us learned about the existence of these collective licensing schemes through any outreach by any of the organizations that have been claiming and using these artists royalties for the last 20 years. Instead weve had to learn what we could from publicly available documents such as income tax returns and from information provided by foreign collecting societies.

Because reliable information has been so hard to come by – and because, in a cottage industry, facts must compete with rumors, misinformation and disinformation – most artists are still unaware, or only vaguely aware, that a massive secondary licensing system has been developing for over 30 years, with growing revenues of roughly $300,000,000 annually. [6]    In other countries where royalties are distributed to artists, surveys by the International Federation of Reproduction Rights Organizations show that visual arts royalties average at least 15% of total collective fees and increase dramatically when digital reprography replaces analog photocopying. [7]

The responses to the recent Visual Arts Notice of Inquiry provides evidence that artists are not receiving any of the royalties from this licensing, but are at least becoming aware of the problem. Here are just 20 of the comments from those nearly 2,600 replies:

Telaina M. Muir: [T]here is a massive secondary licensing already taking place in reprographic rights market that artists dont see a penny of.

Taina Litwak: There is a SEVERELY broken domestic system of returning compensation to artists from reprographic and other secondary rights licensing in both domestic and overseas markets. The current system does not return the more than $300 million dollars generated annually to the actual artists whose work is being licensed. This number is likely to grow and continue to benefit the few, not the many. THIS is something your agency should be focusing on instead of the current re-writing [of copyright law].

Teri McDermott / McDermott Medical Illustration: I am a member of ASIP (American Society of Illustrators Partnership). I do not think my secondary royalties should be paid to publishers or to a trade organization that claims to own or represent my rights, they should be paid to ME, the copyright owner…the US Copyright Office should not legalize the payment of royalties derived from the overseas commercial licensing of individual artists work to self-selected US trade organizations by formalizing the de facto extended collective license currently underway in the US by the Authors Coalition of America and its visual art member organizations.

Association of Medical Illustrators: After many years of litigation over library lending practices, the scope of fair use in photocopying became clearer and publishers established the Copyright Clearance Center (CCC), a CMO that issues non-title specific licenses to institutions and libraries to cover reprography beyond the limits of fair use. Similar to the long-used practices of music collecting societies, the CCC distributes the licensing revenue received to affiliated publishers on the basis of estimated market share. Regretfully, in spite of many years of trying, medical illustrators and other graphic artists have not been able to persuade the CCC to share non-title-specific licensing revenue with artists whose copyrighted images are a significant part of the publications licensed by the CCC, even though illustrators typically have not transferred to publishers the right to keep such revenue. While the CCCs marketing materials give the impression that CCC licenses give users very broad discretion in making secondary copies of published works, the fine print suggests that users have only the right to copy the portions of publications covered by the publishers Copyrights.

The Artists Rights Society: The CCC offers blanket annual licenses to companies, universities and other institutions and advertises that it provides a safe harbor from infringement for all reprography beyond that permitted as fair use. However, the CCC does not share license revenues with visual artists for the visual component of publications included in the blanket license.

Mark Simon: The biggest issue I have run into is dealing with, or trying to deal with the Copyright Clearance Center. They have stolen my work and the work of others, collect money for it and do not pay the owners. I have not given them, or anyone else, permission to license my work. I wrote an article
about the mystery of how they work and they called and bullied me and threatened me. They have lots of lawyers and threatened to bankrupt me. They are one of the biggest threats to creators. They are legally stealing art and income from creators.

Ken Dubrowski: Speaking personally, artists have seen their foreign reprographics royalties diverted away from them over the years and I fear this is exactly what is going to happen with Orphan Works. Several artists organizations privately have instead sided with internet providers to support Orphan works with the knowledge that they will benefit financially with registries. 

Amelia Davis: The kind of system the Copyright Office has proposed to Congress seems all too familiar to me. Artists have already seen their foreign reprographics royalties diverted away from them for at least 20 years. I fear this is exactly what is going to happen with the proposals the Copyright Office has made to Congress. To prevent this unjust conflict of interest, it is imperative that no artists group that supports this legislation be allowed to receive any financial benefit from the creation of copyright registries or notice of use registries. These artists organizations have failed artists and should not be allowed to use this legislation to profit even further off the artists they were created to help.

Cathy Horvath Buchanan: I have recently become aware of secondary licensing market where money is collected on behalf of the artists or their copyrighted works being used by academic publishers etc., but it seems the money is never given to the artists. Someone has the money, but it isnt the artist. I think this is a matter that needs to be dealt with so that the artist whos work is being used receive the benefit from their labour.

Cynthia Turner: For the last two decades my work has been more widely disseminated through infringing activity than by legal publication, even though my work is usually being published worldwide in multiple territories on first publication. I find that any image of mine, once published, is likely to be widely infringed. It has already been more than a decade since the courts recognized the damage to authorial secondary rights in Tasini. And reprographic royalty income has, in fact, been lost to visual authors like me for more than 30 years. Yet, it is a secondary royalty stream that continues to expand in both value and marketshare. The Copyright Clearance Center boasts of returning one billion dollars to rightsholders in the last decade, yet it has not returned one dollar to visual artist rightsholders embedded within the published works it licenses. Billion dollar commercial databases, like LexisNexis, ProQuest, EBSCO, Ovid and other content aggregators engage in the unauthorized licensing of visual art, both within the collective work of the article, and some also separate out the individual image for unauthorized licensing.

David Hohn: Currently United States Illustrators are not considered authors of their work and are therefore not entitled to received monies collected through the International Federation of Reproduction Rights Organizations. This is in direct contrast to my Canadian and British peers whos copyright laws are structured to allow them to receive these funds that are specifically meant for them.

J. David Spurlock: There is a wealth of secondary rights licensing going on that illustrators, photographers and cartoonists have not been made aware of and not been paid for. In other countries artists are properly paid for such and this hidden income stream needs to be better handled in America in favor of the artistic creators of images.

Jill Marci Sybalsky:  We are already losing out to massive secondary licensing already taking place in the reprographic rights markets. 

Gabriella M. Serralles: I am too new to the industry to miss the revenue that artists like Brad Holland have apparently missed due to a lack of education on the secondary licensing in the reprographic market. I was utterly appalled to find out that only in the US have artists missed out on a percentage of the $300,000,000 in revenue that secondary licensing has brought in. In other countries, artists receive up to 15% from it. On top of that, not only is it up to the artist to learn about this aspect of the law, it is none of our business. It is none of our business who or what takes money from our pockets and spends it how they wish. And because this has been going on so long, those who have been collecting our royalties might try and claim that these expectations are settled and should be worked into the copyright law. That is absolutely reprehensible, and if lawmakers actually listened to them and made their continued exploitation, financial dishonesty, and theft legal it would help cripple the creative industry, and by extension the economy. It would reward these institutions for withholding financial information, claiming our hard earned revenue as orphaned funds, and would make it completely legal for them to take food from the mouths of artists ad infinitum. 

Joanne Haderer Muller, MA, CMI, FAMI: Im keenly aware that the Copyright Clearance Center is a for-profit institution that does not redistribute secondary licensing fees to visual creators. Yet another fox in the hen house is a Mistake. 

William Westwood: I want to express one last concern relative to collecting societies in the US, or rather the lack of them – reprographic rights markets. There are apparently hundreds of millions of dollars in royalties that should be being distributed to creators for the licensing of their works. This massive secondary licensing of reprographic rights is a huge revenue stream going apparently to many other corporations even though the money belongs to creators. Why Congress cannot or will not address this unjust situation is mind-boggling.

Kathryn Yingling: The digitization of the worlds creative works, along with the dramatically rising arc of unauthorized secondary licensing by ever-expanding publishing behemoths, are increasingly harming visual authors. For over 25 years a passive U.S. Copyright Office has not implemented policy or recommended legislation to restore balance to the author/publisher relationship. I am grateful to this new Copyright Office administration for the opportunity to participate in the first inquiry into visual art during my 40-year career. It is all too easy for any individual or company to upload an image from Google and use it in an unauthorized fashion. Artists today invest in expensive digital equipment and software that require frequent updating. And there is a great amount of time and effort that goes into the making of the work. Please assure that royalties are paid to the artists who earned them, and not to publishers, content aggregators, commercial databases, art charities or art advocacy trade organizations. 

James Gardner: I believe the Copyright Office and Congress should take a close look at the types of organizations lobbying in favor [of] the proposed changes. If they stand to profit while the actual artists and creators will suffer, you must ask yourself how that could possibly be an appropriate revision.

Kevin E. Pack: At every juncture and major decision the Supreme Court of the United States has held the interest of the creator over that of the user, what has been proposed here moves to turn that on its head. I believe that Congress can address the issue of Orphan Works without rewriting the existing laws, and I do not believe that the Copyright Office should be granted the expansion of the authority it seeks, one need only look at what has occurred with the FCC to see where a grant of that authority will end up. Only it will be worse, the small creators that do not have the financial means or cannot organize to create a union for lack of a better term will lose out and be left out of the discussion much like they have been here. Very few small business owners like myself can afford to travel to Washington D.C. to take part in the discussions that were held, we cannot afford to hire the lobbing firms that companies like Google, AP, Yahoo, Bing and many others hire to advocate their positions and the Copyright office takes their testimony and lists it as a stakeholder agency over the many hundreds of thousands of small business who have seen their livelihood either ended or eroded and feel that they no longer have a voice. (Emphasis added.)

Brad Holland: Because this has been going on under the radar for so long, the groups now taking artists royalties may insist that settled expectations in the marketplace should be institutionalized into the new copyright law. This would be wrong because it would reward those who withheld financial information from artists by allowing them to retain the artists royalties. With the growth of digital licensing, royalties derived from these secondary licenses are growing dramatically. So unless something is first done to correct the current system, we fear that the creation of an extended collective licensing program will only serve to lock artists out of their secondary rights income forever.

We could quote from hundreds of similar comments, but these should be more than enough to make the point. 

In our opinion, the issues behind the proposal for extended collective licensing are greater than whether any organization, whether commercial or non-profit, should be allowed to benefit from the millions of dollars that, collectively, artists are losing. We believe the issues at stake in this proposal are similar to those raised by both the proposed orphan works legislation and the failed Google Book Settlement, which Federal Judge Denny Chin dismissed on March 22, 2011.

Each of these developments involves an effort by third parties to define artists work and/or royalties as orphaned property, and to assert the right – in the name of the public interest, class representation or the legal equivalent of a finders-keepers claim – to exploit that work commercially and/or to appropriate the royalties as their confidential income. We agree with those legal decisions that so far have affirmed that copyright is an individual, not a collective right, and that unless one explicitly transfers that right, no business or organization can automatically acquire it by invoking an orphaned property premise. 

Respectfully submitted,

Brad Holland
Co-Chair, American Society of Illustrators Partnership

Cynthia Turner
Co-Chair, American Society of Illustrators Partnership

Frank M. Costantino, ASAI, FSAI, JARA            
1st Vice-President                       
Representative for American Society of Architectural Illustrators (ASAI)     

Michel Bohbot
Treasurer
Representative for San Francisco Society of Illustrators (SFSI)

Dolores R. Santoliquido
Secretary
Representative for Guild of Natural Science Illustrators (GNSI)

Joe Azar, Esq.
Director
Representative for Illustrators Club of Washington DC, MD, VA (IC)

Dena Matthews
Director
Representative for Association of Medical Illustrators (AMI)

Tonya Hines
AMI Liaison to ASIP

Ilene Winn-Lederer
Director
Representative for Pittsburgh Society of Illustrators (PSI)

Ken Joudrey, Lori Mitchell
Director
Representative for Society of Illustrators San Diego (SISD)

C.F. Payne
Director
Representative for the National Cartoonists Society (NCS)

Nick Anderson
Director
Representative for the Association of American Editorial Cartoonists (AAEC)

Keith Ferris, Kristin Hill
Director
Representative for the American Society of Aviation Artists (ASAA)

Joe Cepeda
Director
Society of Illustrators Los Angeles (SILA)

Don Kilpatrick
Director
Unaffiliated Illustrators at Large

Footnotes

[1] ACA began collecting fees for graphic artists and illustrators in 2003, when Graphic Artists Guild became a member. The agreement between GAG and Kopinor [Norwegian collecting society] was dissolved and Kopinor forwarded the illustrator distributions to ACA. The total reprographic royalties distributed to ACA from 2003 to 2008 year-end is 
$2,137,272.86. Letter from Marianne Shock, Administrator, Authors Coalition of America to American Society of Illustrators Partnership, May 26, 2009.

[2] ACA has no standing to request a Member Organizations (sic) financial records. And, unless one of our Member Organizations files a challenge on one of the graphic arts organizations ACA will not demand those records be turned over to an independent auditor. Neither will we [ACA] support ASIP calling for an independent organization to open their books or release confidential financial information. Letter from Marianne Shock, Administrator, Authors Coalition of America to American Society of Illustrators Partnership, Ibid. N.B. Ms. Shocks comments raise the question of how royalties derived from the commercial licensing of work by ALL American graphic artists can become the confidential income” of certain self-selected Member Organizations of the Authors Coalition. These groups have done nothing to earn the money except claim it from the overseas agencies that collected it. Also, it should be remembered that the “Member Organizations” that decide how to distribute artists’ royalties are the same groups that receive the funds. In short, they distribute other people’s money to themselves. Therefore ACA’s policy of not supplying “confidential financial information” to rightsholders is self-enacted, self-referential and would appear to be self-serving.

[3] Comments of the Association of Medical Illustrators to the Library of Congress, U.S. Copyright Office, [Docket No. 2015-3] Mass Digitization Pilot Program Request for Comments Federal Register Vo. 80, No. 110 June 9, 2015, p. 2, filed October 9, 2015.

[4] The Extended Collective License as Applied in the Nordic Countries, Henry Olsson, The Ministry for Justice, Stockholm, Sweden, May 20, 2005. 

[5] Declaration of Unity, Statement to the General Assembly of the International Federation of Reproduction Rights Organizations (IFRRO), Auckland, New Zealand, Nov. 2, 2006.

The American Illustrators Partnership is a national illustrators rights organization representing some of the most prolific and widely published illustrators in the world. The majority of these artists are independent contractors who have retained reproduction rights to the bulk of their published works, and have made clear their desire to maintain and manage their copyrights.

The Illustrators Partnership is supported by 12 independent graphic arts organizations whose combined membership numbers over 4,000 artists and cartoonists. They have come together in hopes of protecting the rights of their
members collectively, and their boards have endorsed our efforts to bring accountability to the reprographic rights of American popular artists.

Our organizations have not transferred our members mandate to collect print
or digital reprographic rights to any other U.S. organization, nor have the majority of our individual members knowingly or willingly given any U.S. organization such a mandate.

The great body of American illustrators wish to participate in the sharing of reciprocal rights agreements in the international reproduction rights community. Until now most American artists were even unaware that reprographic royalties are being collected and distributed throughout the world.

The Board of Governors of each organization supporting the Illustrators Partnership affirms their intent to unite to constitute the relevant rightsholder class of the reprographic rights of the American illustration repertoire of published works. In this regard we have expressed our willingness to work with the Copyright Clearance Center (CCC).

The full White Paper, with information about each of ASIPs member organizations, is available at the ASIP website: http://www.asip-repro.org/images/decUnity_ifrro.pdf 

[7] In 2005, RROs allocated an average of 15% of reprographic revenues collected to visual material…Several organisations reported a significant increase in copying visual material when scanning and other forms of digital copying are permitted which increased the share of revenues allocated to visual material, The Art of Copying, A Guide to the Incorporation of Visual Material in Reprographic Legal Schemes and Licenses, The International Federation of Reproduction Rights Organizations, footnote, page 18.