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

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 IV

Moving The Cats' Food

The Copyright Office received about 215 relevant letters to their Orphan Works Study. From this they deduced a claim of widespread market failure in commercial markets and concluded that government should “incentivize” creators to register their work with for-profit registries as a condition of protecting their copyrights.

Officially, this goal is expressed benignly on page 106 of the Copyright Office’s Report on Orphan Works http://www.copyright.gov/orphan/orphan-report.pdf:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem, as we explain above. It is our view that such registries are better developed in the private sector...” (Emphasis added)

But later, in defending their proposal, the Report’s principal author stated the case in more coercive terms. Speaking at a Congressional Seminar March 31, 2006, Jule Sigall of the Copyright Office noted that visual artists had failed to “collectivize” to create such registries. And comparing artists to cats who can’t be herded, he said:

“You can’t herd cats, but you can move their food... It’s really what kind of incentives, what kind of pressure and how you put on the right pressure.”*
http://www.pff.org/events/pastevents/033106orphanworks.asp

To which another panelist, the lobbyist for Getty and Corbis, replied: “The tough love theory of copyright policy. We’ll take the food away and then you’ll be motivated to go find where it is.”*

But putting pressure on creators to subsidize the creation of privately-owned registries violates the intent of international copyright law, specifically Article 5(2) of the Berne Convention: “The enjoyment and the exercise of these rights shall not be subject to any formality.” (Emphasis added) http://www.law.cornell.edu/treaties/berne/5.html

This principle has been incorporated into the Universal Copyright Convention and Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). These agreements acknowledge narrow limitations and exceptions to the exclusive right of copyright - so long as the exceptions don’t exceed the constraints of the TRIPS Three-Step Test:

“Member [countries] shall confine limitations and exceptions to exclusive rights to:

(1) certain special cases
(2) which do not conflict with a normal exploitation of the work
(3) and do not unreasonably prejudice the legitimate interests of the rightsholder.” http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm

And as legal scholars Jane Ginsburg and Paul Goldstein have noted in their orphan works comments:

“[T]hese rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time. 1., p. 1, OWR0107-Ginsburg-Goldstein (Boldface added). http://www.copyright.gov/orphan/comments/reply/OWR0107-Ginsburg-Goldstein.pdf

The backers of the Orphan Works bill [H.R. 5889] argue that their proposals won’t violate these agreements because the bill won’t explicitly legislate formalities. It would merely expose to infringement the work of rightsholders who don’t impose formalities on themselves. Just moving the cats’ food.

Contrast that sentiment with the comments from one of our country’s leading illustrators, C.F. Payne, who submitted his thoughts to the Small Business Administration Roundtable on Orphan Works last summer:

“[The Orphan Works bill] promises to protect artists’ work by pressuring them to register every single work of art with commercial databases...This would impose an impossible burden of compliance on me. I doubt that I could participate. Yet if I do not, I would be exposing my life’s creative output to unfettered infringement. This is not in the spirit or intent of copyright and it is not the way our government should pressure creators to deal with their private property.

“I believe myself to be a steward of the best traditions of our craft...

“For thirty years I have worked to build a body of work I can pass on to my children. I hope it will be a source of inspiration for others. For twenty years I have taught, hoping to pass on what I can to the next generation. And, for 10 years I have worked with other illustrators through the Illustrators’ Partnership to see that our business concerns are presented in a professional and responsible way.

“I do not want it said that we in our generation failed to do the necessary work to ensure future generations the opportunities they are entitled to for a fertile career. If government does not emasculate copyright law, my body of work will sustain me for the 25 or so years left in my career. But I have students with hopes for 50 plus year careers. They want to provide for their children with their art.

“In addressing this Roundtable, I hope to have my statement heard by lawmakers. So to them, I would like to say that in opposing this legislation we are not seeking a favor. We are not looking for any special treatment from the law or government. Rather we are looking to Congress for the sense of fair play established by our Constitution. How Congress decides this legislation will be a measure of how we as a nation treat the individual and the individual’s property.”
http://www.scribd.com/doc/6210734?secret_password=ohitwbyx8ada6g3e16e

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

*Quotes from page 24 of the transcript of “Orphan Works: A Search for Solutions,” Congressional Seminar hosted by the Progress and Freedom Foundation, March 31, 2006. Mr. Sigall’s full title at the Copyright Office was Associate Register for Policy & International Affairs http://www.pff.org/events/pastevents/033106orphanworks.asp

Tomorrow: Through the Looking Glass: The False Logic of “Market Failure”

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 next 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.

Orphan Works: A Lame Duck Countdown, Part III

215 Letters

Nearly 300 million people live in the US. How many of them does it take to make an “orphan works problem”? Apparently 215 (give or take a few). That’s the only conclusion we can draw from the Report on Orphan Works released by the Copyright Office in 2006.

In their testimony to Congress, the Copyright Office stated they had received “over 850 letters” to their Orphan Works Study. Yet they failed to note that 600 of those letters had to be dismissed as irrelevant or too vague to determine their relevance to orphaned work.

That information can be found, if you look for it, in their own Report on Orphan Works. http://www.copyright.gov/orphan/orphan-report.pdf:

“The Office received an overwhelming response (by comparison to past studies), receiving 721 initial comments, and 146 reply comments.” - Page 17

Or a total of 867 letters. So much for the talking point. But read on to page 21:

“A large portion of the comments (about 40%) did not identify a specific instance where a copyright owner could not be identified or located. Another portion (10%) presented enough specific information for us to conclude that the problem presented was not in fact an orphan works situation. (Italics in original.)

“Still, approximately 50% of comments did contain information that could fairly be construed as presenting an orphan works situation, and a significant number of those comments (about 45%, or about 24% of all comments) provided enough information about a specific situation for us to conclude that it presented an orphan works situation.” (Emphasis added)

In other words, 24% of 867, or about 215 letters.

On the basis of these letters - out of a country of nearly 300 million people, Copyright Office attorneys have deduced an orphan works “problem” so serious that US copyright law must be be rewritten behind closed doors and rushed through Congress without an open and transparent public debate.

And remember:

• Many who responded to the Orphan Works Study no doubt thought they were contributing to a study of true orphaned works – not promoting a bill that would legalize the commercial infringement of new work from the moment it was created.

• The “interested parties” who worked with the law students in drafting the bill’s “legislative blueprint” were well aware of the Copyright Office study and filed comments supporting the recommendations they had worked on.

• But individual artists, design firms, and other small businesses never knew the study was being conducted and therefore had no voice in the study.

• An exception was the statement submitted by the Illustrators’ Partnership, signed by two thousand artists and endorsed by 42 national and international visual arts organizations. It spelled out the need for maintaining existing copyright protections and warned that a bill drafted too broadly would undermine intellectual property rights and spread uncertainty in commercial markets. Yet although the Orphan Works Report was 127 pages long, the Copyright Office never found space to mention that statement. http://www.copyright.gov/orphan/comments/OW0660-Holland-Turner.pdf

“In other words,” writes David Rhodes, President of New York’s School of Visual Arts, “those who believe there is no [Orphan Works] problem are defined as not serious and dismissed out of hand. As a gauge to serious, some other examples are instructive. When the Federal Communications Commission tried to change ownership rules to allow further media conglomeration, a serious problem, it received millions of negative comments. More recently when the Federal Reserve asked for comments on abusive credit card practices they received 56,000 comments. Obviously, people believe that these are serious issues. Most people simply do not believe that “Orphan Works” are a serious issue.” http://www.scribd.com/doc/6210734?secret_password=ohitwbyx8ada6g3e16e

Yet based on these 215 letters, the Copyright Office report set off an Oklahoma land rush for orphan works domain names. According to an excellent paper by the Advertising Photographers of America:

“Within two weeks of the issuance of the [Orphan Works Report January 23, 2006], nearly all the domain names associated with orphan works were registered by commercial interests in preparation for the profit-taking that will result if this legislation is passed.” – Page 10, The “Come-And-Get-It” Factor, The Orphan Works Dilemma, by the Advertising Photographers of America http://www.apanational.com/i4a/pages/Index.cfm?pageID=3864

Come-and-get-it, indeed.

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

Tomorrow: “Meow” or Moving the Cats’ Food

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 next 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.

Orphan Works: A Lame Duck Countdown, Part II

The Legislative Blueprint

The “legislative blueprint” for the Orphan Works Act was not drafted by the Copyright Office after their year-long Orphan Works study, but before it, by law students at the Glushko-Samuelson Intellectual Property Law Clinic.

Their Copyright Clearance Initiative (CCI) is the document that first proposed the “limitation on remedies” that would radically change international copyright law. From page 5 of the CCI proposal:

“Under no circumstances will Sec. 504(c) statutory damages, attorney’s fees, damages based on the user’s profits or injunctive relief relating to the challenged use be available against a qualified user.” http://copyright.gov/orphan/comments/OW0595-Glushko-Samuelson.pdf

This is the premise the Copyright Office adopted with only slight modifications: where the law students had proposed capping infringement fees at $100, the Copyright Office proposals changed that to an ambiguous “reasonable fee.”

And how did the student authors describe their study of the orphan works issue?

“On April 11, 2003, the Clinic held a symposium with scholars, academics and other interested parties to discuss this issue. Since then, the work of CCI has focused its efforts on devising the blueprint for a legislative solution to the ‘orphan works’ problem...and has been in close contact with various non-profit organizations, intellectual practitioners and academics...”

A footnote names the eight “clinic students” who contributed to the “legislative solution.” And among the “interested parties,” the authors cite Public Knowledge, a group now actively promoting the Orphan works bill. Copyright holders were apparently not considered interested parties, as none are listed among those invited to participate.

The Clinic authors submitted their blueprint to the Copyright Office March 24, 2005. They cited no effort to survey the potential impact of their legislative solution on commercial markets – nor did the Copyright Office three years later, when they adopted the “limitation on remedies” and proposed it to Congress in their 2006 Report on Orphan Works.

The Director of the Glushko-Samuelson Law Clinic is a long-standing critic of existing copyright protections.

In 1994, legal scholar Peter Jaszi wrote that in the new “information environment” created by the internet, authors, artists and others “may not need the long, intense protection afforded by conventional copyright -- no matter how much they would like to have it.”

Copyright, he wrote, is rooted in outdated concepts of “possessive individualism.” The “romantic myth of authorship,” he argued, is a vestige of the 18th and 19th centuries “in which entrepreneurial publishers...[and] entrepreneurial writers...played out their shared conviction that the “individual [is] essentially the proprietor of his own person or capacities -- and thus of whatever can be made of them.”

Professor Jaszi has criticized the US for joining the international Berne Copyright Convention, calling it “an international agreement grounded in thoroughly Romantic assumptions about creativity.” And he noted with disapproval:

“The first Act of this preeminent ‘authors' rights’ treaty in 1886 represented the culmination of a process which got underway in the mid-nineteenth-century with Victor Hugo's vigorous campaign for the rights of European writers and artists. Other famous ‘authors’ rallied to the cause: Gerhard Joseph suggests that the manic energy with which Charles Dickens championed international copyright stemmed from the novelist's private insecurities about his own ‘originality.’”*

Note the scare quotes around “authors rights” and “originality.” The Professor appears to subscribe to the postmodern cliché that all art is a form of collage and that authorship and originality are merely covers for one writers ”vigor” or another’s “manic energy” and “insecurities.”

Maybe so, but a working author might guess that Dickens and Hugo were merely protecting their copyrights because that’s how they made a living.

Citing the authority of postmodern critics, Professor Jaszi laments that their “critique of authorship” “has gone unheard by intellectual property lawyers.”

“However enthusiastically legal scholars may have thrown themselves into ‘deconstructing’ other bodies of legal doctrine, copyright has remained untouched by the implications of the Derridean proposition that the inherent instability of meaning derives not from authorial subjectivity but from intertextuality. Above all, the questions posed by Michel Foucault in ‘What Is an Author?’ about the causes and consequences of the persistent, overdetermined power of the author construct -- with their immediate significance for law -- have gone largely unattended by theorists of copyright law, to say nothing of practitioners or, most critically, judges and legislators.” –Page 12 The Construction of Authorship*

Or to put it in plain English: why hasn’t Congress harkened to some collectivist literary critics and written their debatable theories into US copyright law?

With the Orphan Works bill, maybe they will.

Yet if this were one’s goal – to impose a collectivist agenda on US copyright law, wouldn’t forthrightness be the better policy? Shouldn’t you say “we want to change the laws governing a citizen’s ownership of his or her intellectual property” – then present the case frankly and debate it publicly and transparently?

Wouldn’t that serve the public interest better than concealing the agenda behind a claim that you’re only amending the law to “find homes for the poor orphan works” or making the world safe for folks to duplicate pictures of grandma?

Tomorrow: How many letters did it take to trigger the Orphan Works Bill? Would you believe 215?

*Quotes from the Introduction to The Construction of Authorship: Textual Appropriation in Law and Literature by Martha Woodmansee, Peter Jaszi, Editors, Duke University Press, 1994
http://books.google.com/books?id=dpRKltgJYYwC

Orphan Works: A Lame Duck Countdown, Part I

Little Known Facts

Congress will reconvene for a lame duck session next week. That means Orphan Works backers may try again to pass their bill by suspending the rules. We believe this bill is too controversial to be passed by backroom dealing. It would let commercial interests harvest and monetize the personal property of ordinary citizens without their knowledge.

The bill can be improved, and we’ve offered amendments that would improve it. But there’s not enough time to improve it during a lame duck session. The bill should be held over until the next session of Congress, when those whose livelihood it will threaten can have the opportunity to present their case.

Over the next few days, we’ll highlight some little known facts about the way this bill has been conceived, drafted and promoted. We believe these facts raise serious questions about the legislative process that has brought this legislation to the brink of passage:

1. The “legislative blueprint” for the Orphan Works bill was not the result of the Copyright Office’s year-long Orphan Works Study. It was drafted before the study began, by law students who made no apparent effort to survey its potential impact on commercial markets.

2. The blueprint was drafted under the guidance of a legal scholar who opposes current copyright protections. He has written that authors in the internet age “may not need the long, intense protection afforded by conventional copyright -- no matter how much they would like to have it.”

3. The Copyright Office received barely 200 relevant letters to their Orphan Works Study. Although they testified to Congress that the number was “over 850,” they failed to acknowledge that more than 600 letters had to be dismissed as irrelevant or too vague to determine their relevance to orphaned work.

4. In their Orphan Works Report, the Copyright Office failed to acknowledge a unified statement submitted by 42 national and international visual arts organizations. This statement called for the maintenance of existing copyright protections and warned that a bill drafted too broadly would spread uncertainty in commercial markets.

5. The Copyright Office studied the specific subject of orphaned work, yet concluded they had discovered a widespread “market failure” in commercial markets. But since they didn’t study commercial markets, there’s no evidence for this conclusion in their report.

6. The principal author of the Orphan Works Report has acknowledged that their true goal was to “pressure” working authors into relying on registries to protect their work. He said this was necessary because artists and photographers have “failed to collectivize.”

7. Two of the key players in the legislative process have already left government service and gone to work for companies that stand to profit from passage of the bill. On the other hand, one of the parties who testified in favor of the bill has already gone to the Copyright Office. She’s now in charge of orphan works.

We think these and other little known facts give lawmakers sufficient reason not to pass this bill without a thorough vetting.

Tomorrow: The Legislative Blueprint: How a copyright critic and his students tackled the “orphan works issue.”