IPA Comment to Copyright Office Notice of Inquiry: Copyright Protection for Certain Visual Works

[download the pdf]

July 17, 2015

Maria Pallante

Register of Copyrights

U.S. Copyright Office

101 Independence Ave. S.E.

Washington, DC 20559-6000 

RE: Notice of Inquiry, Copyright Office, Library of Congress       

Copyright Protection for Certain Visual Works  (Docket No. 2015-01)

Dear Ms. Pallante and the Copyright Office Staff:

Thank you for this special Notice of Inquiry. We deeply appreciate the opportunity you’ve afforded all artists to respond individually to the challenges we face as working professionals. In the interest of brevity, we’ll confine these comments to your question #5. We trust that our previous comments have already covered questions 1- 4, and as those comments are posted on the Copyright Office website, we’ll simply add links to them at the end of this letter.

5. What other issues or challenges should the Office be aware of regarding photographs, graphic artworks, and/or illustrations under the Copyright Act?

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. While we’re sure that the orphan works proposals the Copyright Office has recommended to Congress are well-meaning, in the rough and tumble business world where we work, they would effectively abridge those rights. That’s because no author (or citizen, for that matter) could ever again enjoy the exclusive right to any work he or she creates if any other US citizen anywhere is allowed to exploit those same works at any time, for any reason (except fair use), without the authors’ knowledge or consent. The orphan works proposals under consideration would redefine millions of copyrighted works as orphans on the premise that some might be. Yet difficulty on the part of some user to find some author should be insufficient grounds for abridging the Constitutional rights of any US citizen.

In addition to being a Constitutional right, copyright law is a business law. This is self-evident from the language of the Three-Step Test. As you know, Article 9.2 of the Berne Convention places strict limits on the scope and reach of a member country’s exceptions to an author’s exclusive right. Those exceptions must be limited to certain special cases where the reproduction does not conflict with the author’s normal exploitation of the work and does not unreasonably prejudice the author’s legitimate interests. Orphan works infringements would nullify millions of private business contracts between authors and the clients they’ve licensed work to. This would not only cause economic harm to the authors, but to their clients as well. How many private parties will end up suing each other for breach of contract in hopes of making the other party pay for their loss simply because the government itself had passed a private property law breaching their contracts?

When individuals knowingly interfere with the contracts or business affairs of others, it’s called tortious interference. “Tortious interference is a common law tort allowing a claim for damages against a defendant who wrongfully interferes with the plaintiff’s contractual or business relationships.” (1) So in effect, the government would appear to be proposing a grant of blanket amnesty in advance to any infringer who interferes with the contractual or business relationships of millions of authors, small business owners and private parties, so long as the infringer believes he or she is acting in “good faith.” Legislative immunity may exempt lawmakers from lawsuits for tortious interference. But by what right can they permit members of the public to interfere en masse with the contractual business affairs of each other on the slender premise that certain infringers may be ignorant of the economic or personal harm they’re causing to strangers?

The work any citizen creates is that citizen’s private property. Article 1, Section 8 has established that. And the Fifth Amendment to the Constitution states that a citizen’s private property “shall” not be taken by the government without “just compensation.” Legal theories aside, it makes little difference in the real world that orphan works recommendations would permit infringed authors to “come forward” after the fact in an effort to locate their infringers, track them down and either ask for payment or file a lawsuit. Once a work has been infringed, no author can successfully bargain for more money than the infringer is willing or able to pay. This moots the entire issue of “just compensation.” But if government lacks the right to confiscate an individual’s property without just compensation, by what mandate can it grant that right en masse to the public?

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.” No difference, perhaps, except to those working artists who rely on the licensing of their work – past and present – to make a living. Furthermore, since 1978, all authors (and citizens) have relied on the protections afforded them by the 1976 Copyright Act. That law provided each author automatic copyright protection for his or her work from the moment the work was created. Article 1, Section 9 of the Constitution states that “No Bill of Attainder or ex post facto Law shall be passed” by Congress. Therefore any ex post facto legislation that permits the infringement of work created since 1978 would seem to be abridging yet another Constitutional right.

The Copyright Office has proposed that corporate interests be permitted to mass digitize the world’s copyrighted work, so long as it is limited to “non-profit educational or research purposes.” On its face, this would appear to be a charitable exception to Article 1, Section 8. But what provision in the Constitution permits the government to make the public a gift of certain citizens’ private property, even for charitable purposes? If this would not actually be a Bill of Attainder it would have the same effect. In addition, there is no guarantee that if mass digitization is permitted even on such narrow grounds, that certain special interests might not soon begin to lobby for a redefinition of what constitutes “education” and “research.” Nor does it account for the likelihood that various commercial entities will re-organize themselves as legal non-profits for the specific purpose of infringing. Claiming that you are only supplying content for educational or research purposes could be a vast umbrella for sheltering a multitude of abuses.

In addition to these risks, mass digitization risks harm to the authors whose work would be its target. Many of these artists have had to acquire specialized education and develop specialized skills through years of dedicated study and work. Medical, architectural, historical and general science illustrators, aviation artists and others are all required to produce work that not only meets high artistic standards, but is technically accurate as well. To make their work free to others on the premise that it serves educational or non-profit interests would rob them of the return on their investment of time, money, education and experience. And by permitting others to make use of their work as “derivatives,” government risks having the technical aspects of that work distorted, and with it, the true educational purposes it would purport to further. 

Yet slippery-slope issues aside, in the real world we all know that many of the non-profit educational and research organizations are among the best-endowed and most profitable institutions in the world. A college education is not free. The heads and staffs of these institutions rarely work pro bono. Nor are their independent suppliers legally obligated to supply their goods and services at their own expense. So why should the creators of intellectual property, many of whom are independent contractors with no other source of income, be targeted as exceptions? As with the broader aspects of the orphan works proposals, we’re afraid that mass digitization, even on these narrow grounds, would abridge the basic Constitutional protections cited here and would work against the mandate in Article 1, Section 8 for government to “promote [the] useful arts.”

Mass digitization would violate every step of the Three-Step Test. By definition it would NOT limit exceptions to “certain special cases.” The Copyright Office has already acknowledged that. But by violating the first step, it would, by extension, violate the other two. There is simply no conceivable way to mass digitize even a narrow segment of the world’s intellectual property without prejudicing the economic and legitimate interests of at least some rightsholders. Are we to assume, then, that a law has passed muster if it only harms some innocent parties and not others?  And finally, ”[t]he three-step test may prove to be extremely important if any nations attempt to reduce the scope of copyright law, because unless the [World Trade Organization] decides that their modifications comply with the test, such states are likely to face trade sanctions.” (2)

The possibility of trade sanctions by foreign governments would be particularly acute in this case because the US proposals would permit the infringement of foreign work by American infringers. This would not only oblige non-US artists to file their entire lives’ work with American for-profit registries or see it potentially orphaned in the US; it would compel them to file lawsuits in American courts over infringements that would not be legal anywhere else in the world. 

We doubt that many foreign artists will be any more able to comply with the registration and enforcement provisions proposed for this legislation than would most American artists. And it’s unlikely that many of our country’s WTO trading partners would look the other way as their citizens are challenged to comply with a law unique to the US; especially if that law harms their economic interests in contradiction of Berne. These countries would be much more likely to retaliate.

If this were to happen, it is not US lawmakers who would suffer the loss of money and rights, nor the corporate lawyers and legal scholars who have lobbied for these changes in the law. The victims would be the authors and private citizens whose creative work, both professional and private, would have slipped beyond their control and into the public domain where it could circulate in various permutations, perhaps forever, with an American orphaned work symbol still attached to it.

A decade ago, when orphan works legislation was first proposed, we were told that it was necessary so that libraries and museums could digitize their collections of old work by unknown authors. We were told this was needed for archival and preservation purposes. But last year, at the Copyright Office Roundtables, attorneys for these institutions said that recent court decisions expanding the scope of fair use had virtually obviated the need for such legislation. (3) So if that’s the case, then the original justification for orphan works legislation has vanished, and the terms of the Shawn Bentley Act would seem to serve no other purpose now than to permit the commercial infringement of work by living artists. And since that would abridge the Constitutional rights of authors guaranteed in Article 1, Section 8, we’re left to wonder what possible benefits accrue to society by incentivizing infringement at the expense of creation.

Our position on this subject has not changed since 2006, when we testified before the Senate Intellectual Property Subcommittee:

“We believe the orphan works problem can be and should be handled with carefully crafted, specific limited exemptions. A limited exemption could be tailored to solve family photo restoration and reproduction issues without otherwise gutting artists’ and photographers’ copyrights. Usage for genealogy research is probably already covered by fair use, but could rate an exemption if necessary. Limited exemptions could be designed for documentary filmmakers as well. Libraries and archives already have generous exemptions for their missions. If their missions are changing, they should abide by commercial usage of copyrights, instead of forcing authors to subsidize their for-profit ventures.” (4)

Once again we thank the Copyright Office for issuing this special Notice of Inquiry; and we ask you to please recommend to Congress that the House Judiciary Subcommittee conduct further hearings to take the direct testimony of artists, both visual artists and others, regarding the challenges that all creative authors face in the digital era.  

Respectfully submitted,

Brad Holland, on behalf of my colleagues and of any visual artist who shares the concerns expressed here.

Our responses to questions 1-4 are embodied in these previous comments:

Remedies for Copyright Small Claims January 17, 2012: 

http://www.copyright.gov/docs/smallclaims/comments/27_ipa.pdf

Orphan Works and Mass Digitization, Initial Comments February 3, 2013: http://copyright.gov/orphan/comments/noi_10222012/Illustrators-Partnership-America.pdf

Orphan Works and Mass Digitization, Reply Comments March 6, 2013: http://copyright.gov/orphan/comments/noi_11302012/IPA.pdf

Orphan Works and Mass Digitization, Additional Comments, May 21, 2014: http://copyright.gov/orphan/comments/Docket2012_12/American-Society-of-Illustrators-Partnership%28ASIP%29.pdf

Footnotes

1. The Legal Information Institute of the Cornell University Law School 

https://www.law.cornell.edu/wex/tortious_interference

2. Entertainment Law Outline, Prof. John Kettle, Rutgers University, Newark, p.11  

http://www.outlinedepot.com/schooloutlines.aspx?schoolid=182

3. Comments of Jonathan Band, Library Copyright Alliance; and David Hansen, Digital Library Copyright Project, University of California, Berkley School of Law & Law Library, University of North Carolina School of Law; Transcript of the Orphan Works and Mass Digitization Roundtables; Session 1: “The Need for Legislation in Light of Recent Legal and Technological Developments”; March 10, 2014.

Mr. Band: “[O]ur view for the library community…[is] that the fair use jurisprudence as it has evolved over the past 5 to 10 years, certainly since the last [2005] roundtable, has really diminished the need for orphan works legislation.

“We’ve always seen the problem largely as a gatekeeper problem, that the kinds of uses we wanted to make have always been fair use, that it was simply a matter of convincing our gatekeepers that it was fair use. But now with these recent cases, it’s a lot easier to do that.

“And it’s not just the fair use cases, it’s the combination of the fair use cases plus the eBay decision in the Supreme Court concerning the standards for injunctive relief as now it is being applied. That was, of course, a patent case. Now its being applied in the copyright context. And so that reduces the problem of injunctive relief. And so from that perspective we think that the status quo is a pretty good place.” (pp.16-17)

Mr. Hansen “[O]ver the course of the last year we’ve gone around and worked with and had conversations with over 150 different libraries and archives of all different varieties, large academic libraries, small local public libraries, small historical societies.

“And the general sense that we’ve got from every group that we met with is that there’s increasing comfort with relying on fair use as a means of making orphan works available…we’ve heard the same rationale from all of those groups that Jonathan just talked about. There’s a strong sense that those uses that libraries and archives are making are transformative. And then for orphan works in particular within the collections there’s a strong argument that there’s very little market harm.” (pp. 19-21) 

http://www.copyright.gov/orphan/transcript/0310LOC.pdf

4. Senate Testimony of Brad Holland, Illustrators’ Partnership of America, April 6, 2006. 

 http://www.judiciary.senate.gov/imo/media/doc/Holland%20Testimony%20040606.pdf

The Return of Orphan Works Part 1: The Next Great Copyright Act

For more than a year Congress has been holding hearings for the drafting of a brand new US Copyright Act. At its heart is the return of Orphan Works.

Twice, Orphan Works Acts have failed to pass Congress because of strong opposition from visual artists, spearheaded by the Illustrators Partnership.

Because of this, the Copyright Office has now issued a special call for letters regarding the role of visual art in the coming legislation.

Therefore we're asking all artists concerned with retaining the rights to their work to join us in writing.  

Deadline: July 23, 2015
You can submit letters online to the Copyright Office here.

Read the Copyright Office Notice of Inquiry.
Read the 2015 Orphan Works and Mass Digitization Report.

Here are the Basic Facts

"The Next Great Copyright Act" would replace all existing copyright law.

It would void our Constitutional right to the exclusive control of our work.

It would "privilege" the public's right to use our work.

It would "pressure" you to register your work with commercial registries.

It would "orphan" unregistered work.

It would make orphaned work available for commercial infringement by "good faith" infringers.

It would allow others to alter your work and copyright these "derivative works" in their own names.

It would affect all visual art: drawings, paintings, sketches, photos, etc.; past, present and future; published and unpublished; domestic and foreign.

The demand for copyright "reform" has come from large Internet firms and the legal scholars allied with them. Their business models involve supplying the public with access to other people's copyrighted work. Their problem has been how to do this legally and without paying artists.

The "reforms" they've proposed would allow them to stock their databases with our pictures. This would happen either by forcing us to hand over our images to them as registered works, or by harvesting unregistered works as orphans and copyrighting them in their own names as "derivative works."

The Copyright Office acknowledges that this will cause special problems for visual artists but concludes that we should still be subject to orphan works law.

The "Next Great Copyright Act" would go further than previous Orphan Works Acts. The proposals under consideration include:

1.) The Mass Digitization of our intellectual property by corporate interests.

2.) Extended Collective Licensing, a form of socialized licensing that would replace voluntary business agreements between artists and their clients.

3.) A Copyright Small Claims Court to handle the flood of lawsuits expected to result from orphan works infringements.

In your letter to the Copyright Office: 

It's important that lawmakers be told that our copyrights are our source of income because lobbyists and corporation lawyers have "testified" that once our work has been published it has virtually no further commercial value and should therefore be available for use by the public.

So when writing, please remember:

• It's important that you make your letter personal and truthful.

• Keep it professional and respectful.

• Explain that you're an artist and have been one for x number of years.

• Briefly list your educational background, publications, awards, etc. 

• Indicate the field(s) you work in.

• Explain clearly and forcefully that for you, copyright law is not an abstract legal issue, but the basis on which your business rests.

• Our copyrights are the products we license.

• This means that infringing our work is like stealing our money.

• It's important to our businesses that we remain able to determine voluntarily how and by    whom our work is used.

• Stress that your work does NOT lose its value upon publication.

• Instead everything you create becomes part of your business inventory.

• In the digital era, inventory is more valuable to artists than ever before.

If you are NOT a professional artist:

• Define your specific interest in copyright, and give a few relevant details.

• You might want to stress that it's important to you that you determine how and by whom your work is used.

• You might wish to state that even if you're a hobbyist, you would not welcome someone else monetizing your work for their own profit without your knowledge or consent.

- Brad Holland and Cynthia Turner
  for the Board of the Illustrators Partnership


The Illustrators Partnership has filed multiple papers with the Copyright Office regarding this issue. You can download them from the Copyright Office website:

Remedies for Small Copyright Claims
January 17, 2012

Orphan Works and Mass Digitization
Initial Comments February 3, 2013

Orphan Works and Mass Digitization
Reply Comments, March 6, 2013

Orphan Works and Mass Digitization
Additional Comments, May 21, 2014

ONE SMALL STEP FOR ARTISTS

At last it may be possible for some illustrators to start receiving reprographic royalties. The Illustrators Partnership has been pressing this issue for  several years.

Last April we announced that the New York State Supreme Court, New York County, had dismissed all claims in a million dollar lawsuit brought by the Graphic Artists Guild (GAG) against the Illustrators Partnership and five named individuals. 

Regarding a key statement at issue in the lawsuit: that GAG had taken over one and a half million dollars of illustrators' royalties "surreptitiously," the judge wrote:

"The plaintiff Guild has conceded that it received foreign reproductive royalties and that it does not distribute any of the money to artists."

Therefore we were pleased to learn last week that a list of illustrators, designers and photographers has been made public who may now claim their reprographic fees.

The names on the list range from some of the best known artists in our field to many whose identity we can't be sure of. We've already contacted our own members to alert them. Now we urge any artist who has ever done published work to follow the instructions below to see if your name is on the list and if so, to learn what you'll have to do to claim your royalties.

The royalties involved are title-specific fees. That means it's money derived from the foreign licensing of books or other publications where a single author can be identified by the foreign collecting societies that monitor usage and collect usage fees. The sums owed to any individual may not be large. Still, we believe that paying artists what they're due constitutes both an important principle and establishes a precedent for retaining our rights in the digital era.

Returning these title-specific royalties to artists is a start. Yet it still leaves open the far larger question of non-title specific royalties. These are collective fees derived from work that appears in magazines, newspapers, annual reports and other collective works.

Collective fees can be returned to artists only by a collecting society properly chartered to receive funds and make equitable distributions to rightsholders. In the US, 12 illustrators organizations have come together for this purpose. We'll have more to say about that shortly.

In the meantime, here's how you can see if you have money currently waiting for you and what you'll need to do to receive it:

Your name may be posted here:
http://www.authorscoalition.org/individual_author_distributions/index.html
(Click on the box labeled LIST OF AUTHORS.)

1) Download and fill out the ACA Collection and Claim Form PDF here:
http://www.authorscoalition.org/individual_author_distributions/ACA_Collection_Claim_Form.pdf

2) Download and fill out the W-9 Form PDF here:
http://www.irs.gov/pub/irs-pdf/fw9.pdf

3) Fax them to Authors Coalition at 313-882-3047, or mail to:

Authors Coalition of America
IAD
280 Moross Road
Grosse Pointe Farms, MI 48236

For the record, the Illustrators' Partnership is not associated with the Authors Coalition of America.

- Brad Holland and Cynthia Turner

on behalf of the Board of the Illustrators' Partnership

Individual Rights Versus the Collective

For the last several days, we've been responding to queries about the announced "class-action" lawsuit by "visual arts" organizations against Google in the matter of the Google Book Search project. Some perspective: The organizations suing Google are the same visual arts groups that lobbied for passage of the House version of the Orphan Works bill. That bill would have created commercial registries that artists would have to patronize to protect their work from potential orphan status. It would also have created a Dark Archive where infringers could register their right to infringe work. The Google Book Search settlement involves an agreement in which two US organizations would consent to Google's mass infringement of books by the world's authors in return for multimillion dollar cash settlements for their organizations and payouts of $5 to $60 to the infringed authors. In return Google would continue scanning, create yet additional commercial products without the prior consent of rightsholders, control future markets and create a Book Rights Registry of "orphaned" books. The settlement has been condemned by the US Justice Department, the US Copyright Office, several countries and by authors and publishers around the world. One of the chief objections to the settlement is that the plaintiffs do not have standing to trade away the rights of the world's authors as a class action. The US Government has filed two formal statements against the agreement, noting that procedural rules cannot be used to modify rights:  "[T]he amended settlement agreement suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation". (Emphasis added) We commented on this case last fall. It’s currently under review by the United States District Court for the Southern District of New York. Copyright is an Individual Right  Let's reassert the basic principles we've held to since we started the Illustrators' Partnership: ·  We believe that copyright should be maintained as an individual, not a collective right. ·  As such, we will not make claims to represent the copyrights of others without their consent; and ·  We don't recognize the right of any organization to represent our copyrights without our consent.      To be specific: We do not recognize the right of any organization to negotiate with, trade away or permit infringement of our copyrights for any purpose without our consent, either to enter into agreements with third parties, or to be named as an Orphan Works registry, or for purposes of collecting our reprographic and digital royalties, or for condoning the mass infringement of our works for a “cut of the action.” The Google Book Rights Settlement and the Orphan Works Act have highlighted the age-old problem of separating individual rights from the collective. The ability of large internet interests to build empires by aggregating the work of individuals and licensing that work as a "service" to the public has created a tempting business model for opportunists eager to cash in and clothe their self-interest in the language of altruism. The land rush for creators rights as a collective right is on.   Copyright is a property right and is the exclusive right of the author.  We'll have more to say about this in the future.

White House Seeks Artists' Comments to Improve Copyright Protection

New Copyright Czar begins Joint Strategic Plan to Protect Intellectual Property
Victoria Espinel is the first U.S. Intellectual Property Enforcement Coordinator (IPEC), also known as the Copyright Czar. Congress created IPEC by an Act of Congress. Ms. Espinel serves within the Executive Office of the President to coordinate with all the federal agencies that fight the infringement of intellectual property.

Ms. Espinel and her team are specifically tasked with formulating and implementing a Joint Strategic Plan to help protect the ingenuity and creativity of Americans by improving the U.S. Government's protection of the rights of intellectual property owners.

Your input is requested.
The White House is inviting your public input and participation to shape an effective intellectual property enforcement strategy. Please respond with your written submissions regarding the costs to you, your business and the U.S. economy resulting from infringement of your intellectual property rights, both direct and indirect.

This will be a 2-part process.
The first is to gather public recommendations by March 24. IPEC will then gather your input on the formulated plan.

Please be precise.
Include your name, city, state, and what type of artist you are. Explain why copyright is critical to you as a commercial artist, how infringement affects you, and what the U.S. government can do to better protect the rights of American artists. If your submission is about your economic loss due to infringement of your copyrights you must clearly identify the methodology used to calculate your losses or otherwise validate your infringement and enforcement costs.

Your submission will be publicly posted.
For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information.

Confidential disclosures.
If you have confidential business information that would support your recommendation or that you believe would help the Government formulate an effective enforcement strategy, please let them know by contacting:  

Thomas L. Stoll

Office of the Intellectual Property Enforcement Coordinator

(202) 395-1808

Deadline: Submissions must be received by Wednesday, March 24, 2010, at 5 p.m. EST.
Address: All submissions should be sent electronically via intellectualproperty@omb.eop.gov

Additional Background Reading:
White House Blog
Federal Register Notice Request

Authors Groups Meet in Oslo

OSLO NORWAY Over 60 authors organizations met here this week to discuss strategies for defending authors' rights in the digitized world. Their call to action is reminiscent of the grassroots coalition that came together in the US last year to oppose the Orphan Works bill. In addition to concerns over anti-copyright legislation, authors around the world, including visual artists, face threats from piracy, unauthorized usage, all-rights contracts and, in the US, the loss and/or dissipation of their reprographic royalties.

The Oslo meeting was held concurrent with the anniversary of the founding of the International Federation of Reproduction Rights Organizations (IFRRO). IFRRO was born in Oslo 25 years ago. In the last quarter century, it has grown to 190 members and associate members, of which the Illustrators' Partnership is one.

IFRRO was founded by a small group of visionaries who believed that there was a need for an international organization of Reprographic Rights Organizations (RROs). RROs are collecting societies that monitor and clear rights to authors' creations in collective works such as books, magazines, etc. They grant rights, as mandated by authors, collect fees and return royalties to illustrators, artists, writers and others.

Collecting societies are a new concept to most American illustrators. They exist in countries around the world, but currently, there are none for illustrators in the US. Two years ago, the Illustrators' Partnership brought together 12 prominent visual arts organizations. These groups have incorporated as the American Society of Illustrators Partnership (ASIP).

ASIP, which has been chartered as a collecting society, hopes to begin the long-overdue process of bringing accountability to illustrators' reprographic rights. The 12 founding groups of ASIP also formed the nucleus of the 85 organizations that opposed the Orphan Works bill. In future reports, we'll tell you more about what illustrators can do individually to help us build this formal coalition into a functioning society.

Another Anniversary: The 1999 Santa Fe Conference
The meeting of authors this week in Oslo recalls another anniversary closer to home: the first Illustrators Conference, which opened 10 years ago this week in Santa Fe.

The Santa Fe Conference was a grassroots event founded by 8 artists and reps who believed that illustrators should not accept a slow evolution toward the dissolution of their rights. The conference led to the creation of the Illustrators' Partnership - founded by 3 of the same artists- to act on the initiatives first raised at that pioneering event.

So now, as authors worldwide issue a call for cooperative action, we're pleased to note that the spirit of Santa Fe, invoked by illustrators a decade ago, is still alive and well in the US. It's the spirit that guided artists in Washington last year and with luck, it may yet swell and aid in the preservation of copyright law, which is the legal means by which the distinctive expressions of individuals are themselves preserved.

Orphan Works and the Google Book Settlement / Part II

A Reversal of Copyright Law
Last Friday we summarized the basic details of the Google Book Search Settlement. Like the visual arts "databases" we opposed last year, this agreement would allow both Google and a yet-to-be-created Book Rights Registry to commercially profit from an author's work whenever they say they can't locate the author.

Both schemes would force authors to opt out of commercial operations that infringe their work - or to "protect" their work by opting-in to privately owned databases run by infringers. This Hobson's Choice for authors reverses the principle of copyright law.

The by-product of the Google settlement (again like the Orphan Works bill) would be to establish public access to private property as the default position in copyright law. In other words, it presumes:

    a.) that the public is entitled to use your work as a primary right,
    b.) that it's your legal obligation to make your work available, and
    c.) that if you fail to do so, you forfeit your exclusive right to control access to your work.
 
If you're an author and you wish to keep the book you write from becoming a potential orphan, you'd therefore have to register it with the Book Rights Registry run by the parties that settled with Google (and who will receive an award of $30 million for cutting themselves in).

Advocates of the deal try to justify it by saying it will make more books available to more people than at any other time in history - a claim that's no doubt true - but therefore they say, as Andrew Albanese writes in Publishers Weekly, "the massive public good of the deal far outweigh[s] the individual greivances [sic] of rightsholders."

Yet it's in this very argument that the danger lies.

Once the Copy Left has established a legal precedent that the property rights of authors can be subordinated to the assertion of public interest, they can build on that principle to enact further statute and case laws to benefit commercial interests. To do this, they'll have to chip away further at the inherent property rights of individuals.

Orphan Works: "Half a Loaf"
An example of the agenda that underlies both the Google book search settlement and the Orphan Works bill came in May, 2008, at a time when the Orphan Works bill looked to be a shoo-in by early summer. Anticipating a quick mopping up operation, the bill's advocates were high-fiving one another. But as James V. DeLong of the Convergence Law Institute reminded them, there was still much work ahead.

Calling the Orphan Works bill just "half a loaf," he hinted at what it would take to permit commercial interests to take the whole loaf:

"These possibly-orphan, sort-of-orphan, and gray literature works simply cannot be made available if the digitizers are required to make one-by-one judgments and seek permission before copying. If they are to be retrieved in useful form, then sooner or later Google, Amazon, Microsoft, and some others must be permitted to digitize on a massive scale."

Of course he acknowledged that the new reverse copyright law should not deprive intellectual property owners of their "legitimate rights." But he reaffirmed the Copy Left's fundamental premise that intellectual property owners should not be entitled to legitimate rights except in situations where they've registered their works:

"At some point, some kind of grand grandfathering proceeding will probably be required, a window in which holders of existing rights must reaffirm them or lose them." (Italics added)

Again, this is the same premise we see at work in the Google book settlement. As Lynn Chu, a principal at Writers Representatives LLC, wrote in the Wall Street Journal, March 28, 2009: 

"Under the settlement, every rights-owner in America is supposed to hand over all their private contract data, on every edition of every work they ever wrote -- and every excerpt permission ever granted to others -- at the peril of losing the money Google will be making on their backs. This is a massive burden on everyone in the book industry, making us all, in effect, Google's data-entry slaves. Indeed, in most cases such information about every permission ever granted is unlocatable. It opens a Pandora's box of disputes and mistaken claims about who actually owns what."  (Italics added)

This is identical to our warning last year about the Orphan Works bill:

"[The Orphan Works bill] would force artists either to entrust their entire life's work to privately owned commercial databases or see it exposed to widespread infringement. It would let giant image banks access our commercial inventory and metadata - and enter our commercial markets as clearinghouses to compete with us for our own clients. I can think of no other field where small business owners can be pressured to supply potential competitors with their content, business data and client contact information." - Brad Holland, Small Business Administration Roundtable, August  8, 2008

The War on Authors
Both the Google Book settlement and the Orphan Works bill have their intellectual rationale in the war on authors that began decades ago in the obscure theories of Postmodern literary critics. Their fundamental premise is that all creativity is communal and that authors are only the agents through which the community creates. This has led a handful of activist legal scholars to demand changes in the law requiring artists, writers and others to affirm and reaffirm the rights to use their own work by, in effect, licensing it from the public "commons."

This argument, Marxist in its origins, has found its unlikely champion in those large commercial Internet interests that hope to build Information Age empires supplying businesses and the public with creative "content."  By defining millions of works as orphans on the premise that some might be, both the Google Book settlement and the Orphan Works bill would allow these opportunists to profit by harvesting the work of others, providing their databases with content they could never afford to create themselves nor license from authors.

Next: Orphan Works and the Google Book Settlement /Part III: Compelling Arguments
The Register of the US Copyright Office has condemned the Google settlement in terms nearly identical to our condemnation last year of the Orphan Works bill. In Part III, we'll examine those similarities to see the patterns that are emerging from this insidious effort to change copyright law.

Appeal to House Judiciary

December 8, 2008

The Honorable John Conyers, Jr.
Chairman Committee on the Judiciary
U.S. House of Representatives
2426 Rayburn House Office Building
Washington, D.C. 20515

Dear Chairman Conyers:

On behalf of more than 81 professional organizations – and more than half a million small business owners, we are writing to express our grave concern about the controversial Orphan Works Act of 2008 (HR 5889). We’ve been advised that the Judiciary Committee may try to place it on the Suspensions Calendar and pass it by unanimous consent. Please don’t allow this to happen. This is no way to pass a controversial bill opposed by your constituents. It would strip them of their intellectual property rights without due process.

None of the organizations or businesses listed in the attached sheet – and the number is growing as more people learn about it – had a voice in drafting this bill, yet all citizens stand to be harmed by it. We believe that an orphan works bill can be perfected, but we do not believe there is time to perfect it in a lame duck session. We are therefore urging that this bill be held over until the next Congress, when we would pledge the positive input of the creative community to see that a true orphan works bill is passed.

When Chairman Berman held the single open hearing on this bill March 13th before the Subcommittee on the Courts, the Internet and Intellectual Property, he acknowledged that it was not a true orphan works bill. Let us quote him exactly:

“[W]e should correct a misnomer,” [he said]. “The works we’re talking about are not orphans...The more accurate description... is probably an unlocatable copyright owner...But for the sake of ease we’ll keep talking about them as if they’re orphans.”

With all due respect to the Congressman, if this bill is not about orphaned work, we do not think it should be passed as if it were one. Conversely, if its goal is to make the work of ordinary citizens available as commercial content to large internet databases, such a transfer of rights should be openly and transparently debated on its own merits.

An orphaned work is a work whose author has died or abandoned his copyrights. This bill would redefine an orphan as “a work by an unlocatable author.” This would radically re-define the ownership of private property. This bill, as written, would permit any person to infringe any work by any author at any time for any reason – no matter how commercial or distasteful – so long as the infringer found the author sufficiently hard to find. Since everybody can be hard for somebody to find, this voids every rights holder’s exclusive right to his or her own intellectual property as required by the U.S. Copyright Act. It creates the public’s right to use private property as a default position, available to anyone whenever any property owner fails to make himself sufficiently available to any would-be user.

The Orphan Works bill is being presented as a minor adjustment to Copyright Law. It is not. This bill – in both houses of Congress – would affect the most personal form of private property that exists – the work that citizens create themselves, the work they use to make a living, the work they use to express their time on Earth. It would affect any form of creative expression – from professional artwork to family photos, home videos, songs and lyrics – and anything that anyone has ever been placed on the Internet. It would affect the work of living authors who are still actively licensing their work.

The stated purpose of the bill is to benefit libraries and museums. But if so, why have the doors been opened wide for commercial infringement?

On the premise that culture will be harmed if authors can’t be found, this bill would “pressure” copyright holders to surrender access to their commercial inventory, metadata and licensing information to privately owned commercial databases. Unregistered work would be vulnerable to potential infringement. Since no rational business owner would voluntarily turn over private business information to outside commercial interests without agreed upon compensation, this is a troubling prospect for millions of creators and small business owners. And since copyright holders would have to digitize their entire inventory at their own expense to comply, this bill would socialize the cost of compliance while privatizing the profits from creative work.

The bill’s drafters have relied on the 2006 Report on Orphan Works, issued by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. They did not inquire into the workings of commercial markets and there is no evidence in their report that business clients are unable to find the living authors they wish to work with. No evidence whatsoever. This bill has been drafted behind closed doors, without a needs-assessment study, an economic impact analysis, or an evaluation of how the public would be affected by this transfer of private property from individuals to giant commercial databases.

The first – and so far only – effort to assess the economic impact of this legislation on the creative community came on August 8, 2008 when the Office of Advocacy of the Small Business Administration conducted an Orphan Works Roundtable in New York City. Participants represented artists, writers, photographers, songwriters, musicians, performers and many collateral small businesses. Panelists stressed several key points:

• The high cost of compliance would make it impossible for many small business owners
to comply; yet
• Failure to comply could lead to loss of intellectual property.
• The loss of exclusive rights would breach the sanctity of contracts, and
• Devalue the work of rights holders in their derivative markets.

For the 81 groups in the enclosed list, the most troubling part of this has been our near-total exclusion from the legislative process. To counter the protests of copyright holders, special interests have tried to dress up the House bill with complicated provisions, calling them “speed bumps” for infringers. For example, the House bill requires an infringer to perform a “qualifying search” – where a qualifying search is defined as one that is reasonable and diligent but reasonable diligence is left for the courts to define. Who wants to go to court to seek payment after your work has been used? We’re business people. We make our livings through voluntary business transactions, not lawsuits. Any bill that drives business decisions into the courts is bad for business and bad for the courts.

To understand this bill, we have to go to the heart of the matter. By defining millions of works as orphans on the premise that some might be, this bill will allow Internet content providers to profit by harvesting and monetizing the work of ordinary citizens, providing their databases with content they could never afford to create themselves nor license from authors.

In light of the meltdown on Wall Street, we do not think it’s wise for Congress to concentrate our nation’s copyright wealth in the hands of a few corporate databases. The contents of these databases would be more valuable than secure banking information. Yet this bill would compel small business owners to subsidize their business models. That means it would be the assets of ordinary citizens at risk in the event of their failure, mismanagement or corruption. The consequences of this step will be far-reaching, long lasting, perhaps irreversible and will strike at the heart of property ownership.

On July 11th, on behalf of all those who wish to see a true orphan works bill, the Illustrators’ Partnership, Artists Rights Society and Advertising Photographers of America submitted Amendments to the Subcommittee on Courts, the Internet and Intellectual Property.* The Amendments have never been considered. A new Congress would have the opportunity to do so. Please do not allow this legislation to pass until it can be subjected to an open, informed and transparent public examination.

Sincerely,

Brad Holland, Illustrators' Partnership
212.226.3675, brad-holland@rcn.com

Cynthia Turner, Illustrators' Partnership
850.231.4112, cynthia@cynthiaturner.com

Dr. Theodore Feder, President, Artists Rights Society
212.420.9160, tfeder@arsny.com

Martin Trailer, President, Advertising Photographers of America
800.272.6264, Martin.Trailer@APAnational.com


*H.R. 5889 Amendments available here:
http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html

Orphan Works: A Lame Duck Countdown, Part V

Through the Looking Glass

Orphan Works advocates defend their proposals by saying they’re necessary to put users in touch with copyright owners. They say this isn’t happening now because of a market failure in commercial markets.

Speaking at a Congressional Seminar March 31, 2006, Copyright Office attorney Jule Sigall explained why they believed artists needed Congress to “push” them to register their work with privately owned copyright registries (page 23 of the transcript):

“[A]t this stage, in respect to the legislation...the real question we need to ask and answer is, what kinds of provisions put the right pressure [on photographers and illustrators] to get to that point? Who needs to be pushed there? I mean... I use this line a lot, photographers and illustrators like to say, ‘We haven’t collectivized...’ This is a problem, generally, for their marketplace. It’s hard to have a marketplace where buyers can’t find sellers.” (Emphasis added) http://www.pff.org/events/pastevents/033106orphanworks.asp

Nothing expresses the looking glass logic of the Orphan Works bill better than this statement by the “principal author” of the Copyright Office report that an amendment legalizing the infringement of millions of commercial copyrights is necessary in order for buyers to find sellers.

For the record, there is no evidence in the Copyright Office report that art directors and commercial clients are having any difficulty finding the contributors they want to work with. No evidence whatsoever! Indeed, even a cursory glance at our field refutes that conclusion:

Consider magazines such as Vanity Fair, the New Yorker, Time or Vogue. All of them and countless others are filled from cover to cover with photographs and art - as are newspapers, trade publications, medical journals, ads, annual reports, posters, brochures, catalogues, postcards greeting cards and more. How can anyone be surrounded by this sea of images and seriously argue that in the visual arts “sector,” “buyers can’t find sellers”?

The Copyright Office “evidence” for their conclusion of market failure amounts to no more than 215 relevant letters submitted to their study on the specific subject of orphaned work. Since they didn’t study the workings of commercial markets, there cannot possibly be any valid grounds for deducing a market failure in those markets. You can’t study apples and draw conclusions about oranges.

Orphan Works “For the Sake of Ease”
However unfounded, this Copyright Office factoid of “market failure” is now an orphan works fact to lawmakers. When Chairman Berman of the House IP Subcommittee held the sole public hearing (I hour 27 minutes) on this bill, March 13, 2008, he acknowledged in his opening statement that it was not a true orphan works bill. Yet he insisted it was necessary to correct a “market failure”:

“[W]e should correct a misnomer. The works we’re talking about are not orphans...The more accurate description of the situation is probably an unlocatable copyright owner...this situation better describes the orphan works construct, which is to correct the market failure when a potential user can’t find the copyright owner. But for the sake of ease we’ll keep talking about them as if they’re orphans.”
http://www.copyright.gov/video/testimony-3-13-08.html

But to redefine an orphaned work as “a work by an unlocatable author” is to radically re-define the ownership of private property. Since everybody will be hard for somebody to find, this bill would permit any person to infringe any work by any author at any time for any reason - no matter how commercial or distasteful - so long as the infringer found the author sufficiently hard to find. And this would create the public’s right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available.

We may presume that the bill’s backers don’t want to be seen as trying to strip citizens of their intellectual property rights without due process. So instead they now argue that they’re only trying to help artists, who in their fecklessness, oppose the bill because we don’t want to be helped.

The Myth of the Feckless Artist
The best example of this mythologizing can be found in statements coming from Public Knowledge, one of the driving forces behind this legislation. On May 29, 2008, Gigi Sohn, President and Co-Founder of PK, explained to listeners at the Center for Intellectual Property why artists perversely oppose these bills:

“Now let me tell you what the main opponents of orphan works legislation really don’t like about it...[they] don’t like the fact that good faith users- those who are willing to pay but can’t figure out who to pay - might be able to use their works without permission and without the maximum financial punishment. They want to control every use of their works, and whether or not they receive fair payment is beside the point.” http://www.publicknowledge.org/node/1594 *

And on August 21, 2008, her colleague at PK, Alex Curtis, reiterated the theme:

“Visual artists say they have a problem, that no one can find their work, or at least match them as the owner of their work.” http://www.publicknowledge.org/node/1717

“Visual artists say they have a problem, that no one can find their work...” Actually we’ve never said any such thing. In fact we’ve explicitly said the opposite. Here’s just one example, from a sample letter we posted on our CapWiz site May 3:

“I am told that the Copyright Office conducted a study of Orphan Works and that these bills are based on that study. I understand that an orphan work is a work whose owner can’t be located. I am alive, working and managing my copyrights. I can be located. My clients locate me all the time. But that does not mean that anyone anywhere can find me. And frankly, why should the failure of any one person to find me be the measure of whether or not I can be found?

“What if 1000 people can find me but one can’t? Why should that one person get a free pass to use my work?” http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11333406

“I can be located. My clients locate me all the time.” I don’t see how we could say it any more clearly.

Far from complaining that we can’t be found, an entire food chain of collateral markets currently exists to facilitate the process by which image buyers successfully find image sellers: Agents, commercial directories, trade shows, ads in trade publications, direct mail, web sites and email solicitations - all attest to the fact that hundreds of thousands of creators are engaged daily in the robust business of making themselves accessible to potential users.

All of these businesses will be hurt by a bill that legalizes the infringement of the work they trade in. None will be helped by placing on them the onerous and costly burden of registering and maintaining tens of thousands - or for photographers, hundreds of thousands - of individual copyright registrations, not to mention the impossible burden of trying to monitor infringements of their work, which can occur anytime, anywhere in the world.

The Orphan Works proposals under consideration would not create new ways for buyers to find sellers. It would merely allow opportunists to co-opt the existing markets of creators and of the collateral businesses that serve them.

As artists we already know this. Our chore is to hold this bill over until the next Congress, then work to counter the false logic of market failure created by the unwarranted conclusions of the Copyright Office’s Orphan Works Report.

- Brad Holland and Cynthia Turner for the Board of the Illustrators’ Partnership

*Presented to the Center for Intellectual Property 8th Annual Intellectual Property Symposium, University of Maryland University College May 29, 2008

Tomorrow: A Bill Too Far

The Orphan Works Act of 2008 (H.R. 5889) has not been passed by the House of Representatives, but could be placed on the Suspensions calendar and passed by the lame duck session of Congress scheduled to re-convene this week. The Illustrators’ Partnership is asking lawmakers to hold the bill over to the next session of Congress, when rightsholders can have an opportunity to have their case heard before the full Judiciary Committee.