October 1, 2015
Maria Pallante
Register of Copyrights
U.S. Copyright Office
101 Independence Ave., S.E.
Washington, DC 20559-6000
RE: Reply Comment, Notice of Inquiry, U.S. Copyright
Office, Library of Congress: Copyright
Protection for Certain Visual Works (Docket No. 2015-01)
Dear Ms. Pallante and the Copyright Office Staff:
The Copyright Office’s 2015 Report
on Orphan Works and Mass
Digitization, submitted to Congress in June contains a misleading comment
about previous legislation and a misstatement of fact about visual arts
registries that we believe should be clarified to lawmakers; both could have a
direct bearing on any potential copyright legislation Congress may draft. We
also wish to comment on a judgment made by the Copyright Office that demonstrates
the kind of unintended consequence that can arise when outside interests try to
make large decisions better left to the marketplace. And finally we intend to
expand on our initial comments
regarding the relevance of the Constitution’s Ex Post Facto Clause
to the proposed orphan works legislation.
The Shawn Bentley Act: Unanimous Consent in Name Only
The Copyright Office
states (page 12) that the Senate passed the Shawn Bentley Act by unanimous
consent. In fact, it was passed by a legislative maneuver called
hotlining that effectively bypassed Senate consideration. According
to Roll Call, Sept 17, 2007:
“The practice [of
hotlining] has led to complaints from Members and watchdog groups
alike that lawmakers are essentially signing off on legislation neither
they nor their staff have ever read…In order for a bill to be hotlined, the
Senate Majority Leader and Minority Leader must agree to pass it by unanimous
consent, without a roll-call vote. The two leaders then inform Members of this
agreement using special hotlines installed in each office and give Members a
specified amount of time to object – in some cases as little as 15 minutes. If
no objection is registered, the bill is passed.” [1]
The Shawn Bentley Act
was hotlined twice during the summer of 2008, but both times artists contacted Senators and
holds were put on the legislation. On September 26, 2008, the bill was hotlined
again, this time during early evening hours the night of the first Obama/McCain
Presidential debate. With most Senate offices closed, even the legislative
aides we were able to reach by blackberry said they lacked the time to read the
hotlined bill, and so it was passed by what Senate protocols are allowed to
call “unanimous
consent.”
[2]
Unanimous consent,
however, in name only.
On December 5, 2008, we
received an email from Senator Charles Schumer, whose empty office we had
phoned the night of the hotlining. In the letter, the Senator assured us of his
conviction “that
protecting intellectual property is one of the best ways to promote innovation,” and that “it is vital that we
continue to protect both incentives for innovation and the means
of livelihood of millions of New York artists.” Then he concluded:
“The Orphan Works Act is currently being carefully considered by
the Senate. Members of my staff have met with representatives of
artists and small business owners who have expressed many of the same
concerns you mentioned. I will continue
to closely study developments on this bill and I will
work with both my Senate colleagues and the New York artist community to ensure that any bill
that is ultimately passed
appropriately balances these competing
concerns.”
(Emphasis added.) [3]
Apparently the Senator
was unaware that the Shawn Bentley Act had passed the Senate more than two
months earlier, by “unanimous
consent”
including – allegedly – his. We doubt that he was the only lawmaker left in the
dark by this controversial procedure.
The Senate’s success in passing the
bill in this fashion apparently inspired advocates of the House bill to
lobby for similar tactics to be used there. On October 6, 2008,
Gigi Sohn, President of Public Knowledge, wrote this on her blog:
“The best option [for
passing the House bill] was to put it on the ‘suspension calendar,’ which is the place
largely non-controversial legislation gets put so that it will get passed
quickly. There can be no amendments to bills placed on the suspension calendar.” [4]
Until the very last
minute, Sohn acknowledged, she and other lobbyists “were on the phone
imploring the [House leadership] to move the bill” in this surreptitious fashion. Yet in the
end, “it
was to no avail.”
On October 3, 2008, with lawmakers struggling to package the 700 billion dollar
TARP bailout, Congress adjourned without passing the Orphan Works Act.
Elsewhere, we have
argued that an author’s
exclusive right of copyright is a Constitutional provision, and as such, cannot
be abridged without a Constitutional amendment. Congress, of course, cannot
abridge a Constitutional right by means of statute law. But to try to do it by
legislative maneuver should be unthinkable.
May we ask,
respectfully, that the Copyright Office issue an official clarification to all members
of Congress involved with drafting new copyright legislation, noting the unique
circumstances of the Shawn Bentley Act’s passage. Otherwise lawmakers might be
misled into believing that it was a non-controversial bit of legislation, duly
considered by the Senate, voted on by all members with unanimous approval, and
therefore pre-approved for inclusion in whatever copyright legislation they may
be drafting.
Credible Visual Arts Registries: Still Years Off
There is another comment
in the 2015 Report that we believe requires clarification. According to the
Copyright Office, “developments
since 2008 have helped to reduce the obstacles facing visual artists in an
orphan works context – most notably the development of credible visual art
registries…Currently, several visual arts organizations support the non-profit
PLUS Registry as an important way to enable diligent searches for owners of
orphan works. PLUS functions as a ‘hub’ connecting
registries in eighty-eight countries, and provides both literal and
image-based searches.”
[5]
Working artists, however,
know that there is no such registry. Here are just some of the many comments
submitted to the Notice of Inquiry:
Brad
Holland: “Stated
this way, it might suggest to Congress that such a registry actually exists,
that it is stocked with artists’
images, and is ready and able to start licensing those images to the world. If
this is what you’ve
been told, I’m
afraid you have been misinformed. There is no such thing.
“I am one of the most
prolific published artists of the last 50 years, with multiple awards, a client
list that includes nearly every major publication in the country and a place in
the Illustrators Hall of Fame. If there were such a registry I would know about
it, and if I thought it would be beneficial to my interests, my work would be
in it. But I know of no such registry and neither do any of my colleagues.”
Katherine Guevara-Birmelin: “According to the
Copyright Office’s
report in 2015, there already exists a credible visual arts registry which
functions as a hub, connecting registries in 88 countries, providing both
literal and image based-searches. My understanding of this phrasing is that
such a registry actually exists, and therefore if I am reading it in this
manner, so is everyone else, including those holding power in Congress. It
would be my experience in networking with other artists in my field, that the
above is false. No such registry exists.”
Scott
Stanton: “The
claim that there is already a viable visual arts registry that would benefit
artists and the reprographic and secondary rights licensing agency that pays
artists royalties are both incorrect. Currently this is NO viable visual arts
registry, only stock houses which in my opinion do NOT best represent artists’ interests.”
Cynthia
Yolland: “There
is no national registry to date. The ‘registries’ that currently exist
are pseudo-registries and not economically viable to artist[s], in fact in
many instances they give no remuneration to the artists involved and
use images without credit or value.”
Taina
Litwak: “There
are no registries in any overseas markets that behave in the proposed fashion
as would be required to make a viable market for artist[s] to thrive.”
Angela
Treat Lyon: “Even
the PLUS registry under development appears to be utilizing metadata and
watermarks - both identifiers that are useless currently to protect
ownership information.”
Dena Matthews: “I am also troubled that the Copyright Office makes claims in it’s report that a viable search for a suspected orphan work of visual art could be conducted on the Copyright Office’s website or on the PLUS registry, when in fact, that is impossible. As you know, The Copyright Office’s registry is not searchable by image; one must have the Title, Name, Keyword, Registration Number, Document Number or Command Keyword of a registered work to find it there and the search results do not display an image, only text based-information. The PLUS Registry is in Beta Phase 1 and one can only search[ed] by PLUS ID or Name. We are suspicious of the PLUS Registry because, while not even a litigant in the case, they have received from Google a confidential amount of settlement money that should have gone to infringed artists and rights holders.”
We are, of course, well
aware that there are many “wannabe registries, beta sites, etc.”
such as PLUS. In fact the Illustrators Partnership was one of the first
visual arts groups to support PLUS. We did so, however, on the assurance that
it would be a voluntary registry only
and would not, under any circumstances, be used to justify passage of orphan
works legislation.
PLUS has never been open
to visual artists to register their works. PLUS is still not open for
registration as of this writing. And even if it were, it would take at least a
decade or longer for artists to load up their works – if they could afford to. Artists
know all this, as the comments we’ve
quoted above – and many more – demonstrate.
As a result, we again respectfully
request that the Copyright Office officially inform members of Congress that
contrary to misinformation given to the Copyright Office, no credible visual
arts registry currently exists that is even remotely populated with enough images
to make a search of that registry a viable search. Furthermore, lawmakers
should be told that in the opinion of those best qualified to know – working
artists – no such registry can possibly be viable for the foreseeable future.
Or, it may never be viable at all.
Useful Articles and Unintended Consequences
On page 54 of its 2015
Report, the Copyright Office recommends that art on useful articles be exempted
from orphan works legislation, but that all other forms of art should be
subjected to it.
“The Copyright Office
recommends that future orphan works legislation apply to all types of uses and
all types of users, noncommercial and commercial, with the single exception of fixations of works of visual art in or on
commercially available useful articles.”
(Italics added.)
The Office goes on to
defend this “single
exception.”
But with all due respect, how can it be defended? By what possible standard is
a drawing on a mug or a t-shirt more valuable, to either the creator, his
clients or to the public, than a book or magazine illustration, a political
cartoon, a medical or scientific illustration, a mural in the Smithsonian Air
and Space Museum? Who in government believes themselves qualified to make such
a sweeping judgment on the relative value of such works? And on what possible
grounds can such a judgment be made?
Let’s take an example of
what could happen if art on useful articles were to continue to receive the
full protection of copyright law, while all other art becomes subject to orphan
works infringement:
A clothing manufacturer infringes
an unregistered magazine illustration orphaned by the law and places the art on
a cheap line of t-shirts. Now, thanks to orphan works legislation, the
creator of the original drawing will have lost the exclusive right to his own
creation while the infringer will have acquired it. This would be not only
an unjust reversal of the
principle of copyright, it would defy any rational definition
of private property rights.
We assume that such a situation
would be the unintended consequence of a governmental decision. Yet it highlights the problem of
trying to socially engineer details of a multi-billion dollar cottage industry.
At the 2014 Roundtable
we tried to make the point that no person
or group of persons can ever know enough about other people's business affairs
to make decisions better left to those whose interests are at stake:
“Because there are so
many lawyers involved in this, we’re
talking about [copyright law] as if it’s
some arcane branch of law. It’s
not. What you’re
talking about is prescribing business models for people in businesses in which
frankly, most of you don’t
know enough [about our businesses] to be creating business models…The
marketplace will create business models. It can move faster than Congress. It
can move faster then the Copyright Office, faster than the lobbyists and legal
scholars. If an artist comes up with a better means of being discovered, other
artists will find out about it and will copy the same technique. Leave this
to the marketplace. That’s
the best laboratory for creating business models.” [6]
In the famous economic
fable “I,
Pencil,”
Leonard Reed showed that no individual or special group possesses sufficient “know-how” to “master-mind” the “complex combination” of creative and economic
decisions that go into making something even as simple as a common lead pencil,
let alone more complicated enterprises.
“The lesson I have to
teach is this [he concluded]: 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.” [7]
Artists,
for whom common lead pencils are still a principle means of expression, would
ask for nothing more or less than this from our government.
The Ex Post Facto Factor
The Copyright Office
says that for purposes of orphan works infringement, “there should be no
distinction as to whether a work is currently being exploited [by the author],
or whether it was created decades ago.” [8] However, we’ve already noted in our
initial comments that the distinction does
matter, and matters greatly to artists who depend on licensing their work –
past and present – to make a living.
Moreover, we noted that “Article 1, Section 9 of
the Constitution states that no ‘ex
post facto Law shall be passed’
by Congress. Therefore any orphan works legislation that permits the
infringement of work created since 1978 would seem to be abridging yet another
Constitutional right.” [9]
We’re well aware that since
the drafting of the Constitution, courts have generally held the Ex Post Facto
Clause to apply only to criminal cases. But according to The Heritage Guide to the
Constitution, “opposition to ex post facto laws was a bedrock
principle among the Framers. In The Federalist No. 78, Alexander Hamilton noted
that ‘the
subjecting of men to punishment for things which, when they were done, were
breaches of no law’
is among ‘the
favorite and most formidable instruments of tyranny.’” And in an 1813 letter
to Isaac McPherson, Thomas Jefferson noted “that ex post facto laws
are against natural right.” [10]
“In
Philadelphia, the Framers debated the issue vigorously. Some thought an
explicit ban on ex post facto laws an absolute necessity,” while others had
differing opinions about the effectiveness of a ban. The current
holding regarding the scope of the Ex Post Facto Clause derives from “one of [the Supreme
Court’s]
earliest constitutional decisions,
Calder v. Bull, decided in 1798.” In it, Judge Samuel
Chase defined ex post facto laws as pertaining to criminal judgments and
according to The Heritage Guide, based his decision on the fact that, “had the ex post facto
law clauses barred all retroactive civil laws, the prohibition on the
impairment of contracts by states (Article I, Section 10, Clause 1) and on
uncompensated takings by the federal government (the Fifth Amendment’s Takings Clause) would
have been unnecessary.” [11]
Ever since, however,
some have argued that Judge Chase’s
reasoning meant that the true scope of the Ex Post Facto Clause had never
been “squarely
presented.”
“[A] few
commentators and two Justices, William Johnson in Satterlee v. Matthewson (1829) and Clarence Thomas in Eastern Enterprises v. Apfel (1998),
have voiced doubt over the accepted rule that the Ex Post Facto Clause applies
only to criminal legislation. In Apfel,
citing Justice Joseph Story, Thomas contended that the Ex Post Facto Clause,
even more clearly than the Takings Clause, reflects the principle that
retrospective laws are ‘generally
unjust.’
He [Judge Thomas] continued:
“‘Since Calder v. Bull,...this Court has
considered the Ex Post Facto Clause to apply only in the criminal context. I
have never been convinced of the soundness of this limitation, which in Calder was principally justified because
a contrary interpretation would render the Takings Clause unnecessary....In
an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine
whether a retroactive civil law that passes muster under our current Takings
Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto
Clause. They
do so effectively where personal liberty is at issue. But the clause is of
little use to those who are aggrieved by most forms of retroactive civil
legislation, which frequently affect property rights of one form or another.’” (Emphasis added.) [12]
Orphan Works
legislation, as we have repeatedly pointed out, would affect property rights. It would affect the most
personal form of private property that exists: the work that citizens
create themselves, the work we use to make a living, the art we create to
express our short time on Earth. Orphan Works legislation would affect any form
of creative expression – from professional artwork to family photos, home videos, songs and lyrics –
and anything that anyone ever places on the Internet.
Artists by the thousands
have already commented on the damage this legislation would do to their lives
and careers. But to orphan copyrighted work retroactively would open new
doors for financial and personal abuse.
We have already noted that disgruntled clients could easily
use the law as an excuse to sue artists for failing to register work during the
four decades that registration was not required. And respondents to the Notice
of Inquiry have cited other concerns: “Does the US Copyright Office plan to pay
back all the registration fees (plus interest) to those who, like me,
registered diligently over decades?”
“It
would be impossible for me to furnish deposit data and register all of my
work created since 1975.” “I am nonplussed that the
US Copyright Office would wish to invalidate copyright registration
certificates I have filed for over 30 years by its own Orphan Works policy.” [13]
Would this not be an “appropriate case” then to reconsider the
wisdom, not to mention the fairness, of passing legislation that would reach
back to 1978 and effectively penalize artists and citizens alike for failing to
register work that existing law did not then require them to register?
“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. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”
We thank the Copyright
Office for the opportunity to offer these comments.
Respectfully submitted on behalf of my colleagues,
Brad Holland
Footnotes
[3]
Email from Senator Charles Schumer
to Brad Holland, December 5, 2008. See Appendix.
[5]
2015 Report on Orphan Works and
Mass Digitization, p. 52. http://copyright.gov/orphan/reports/orphan-works2015.pdf
[6]
Brad Holland Roundtable Transcripts
March 10, 2014, Session 1, pp. 80-82. http://copyright.gov/orphan/transcript/0310LOC.pdf
[7]
“I, Pencil” by Leonard E. Reed,
From Essays on Liberty, Volume VI,
originally published in the December 1958 issue of The Freeman. http://www.econlib.org/library/Essays/rdPncl1.html
[8]
2015 Report on Orphan Works and
Mass Digitization, p.51. http://copyright.gov/orphan/reports/orphan-works2015.pdf
[9]
Comments of the Illustrators
Partnership to Notice of Inquiry, Copyright Protection for Certain Visual Works (Docket No. 2015-01),
July 17, 2015.
[11]
Ibid.
[12]
Ibid.
[13]
Comments of Teri McDermott,
McDermott Medical Illustration to Notice of Inquiry, Copyright Protection
for Certain Visual Works (Docket No. 2015-01), July 14, 2015.
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