[
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)
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 CCC’s 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]
ASIP’s 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). ASIP’s 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 we’ve 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 don’t 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 CCC’s 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 isn’t the artist. I think this is a matter
that needs to be dealt with so that the artist who’s ‘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 who’s 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: “I’m 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 world’s 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. Shock’s 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).”
[7]
“In 2005, RRO’s 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.
