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

Graphic Artists Guild Lawsuit Dismissed

Last week the New York State Supreme Court, New York County, dismissed all claims in a million dollar lawsuit brought by the Graphic Artists Guild (GAG) against the Illustrators' Partnership of America (IPA) and five named individuals. In the lawsuit, GAG asserted claims for defamation and interference with contractual relations, alleging that IPA had interfered with a "business relationship" GAG had entered into that enabled GAG to collect orphaned reprographic royalties derived from the licensing of illustrators' work. GAG alleged that efforts by IPA to create a collecting society to return lost royalties to artists "interfered" with GAG's "business" of appropriating these orphaned fees. In her decision, Judge Debra James ruled that statements made by the Illustrators' Partnership and the other defendants were true; that true statements cannot be defamatory; that illustrators have a "common interest" in orphaned income; and that a "common-interest privilege" may arise from both a right and a duty to convey relevant information, however contentious, to others who share that interest or duty.  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: "Inasmuch as the statement [by IPA] was true, [GAG]'s claim cannot rest on allegations of a reckless disregard of whether it was false or not. Truthful and accurate statements do not give rise to defamation liability concerns."  (Emphasis added.) And she noted: "The plaintiff Guild has conceded that it received foreign reproductive royalties and that it does not distribute any of the money to artists." Labor Department filings provided as evidence to the court document that between 2000 and 2007, GAG collected at least $1,581,667 in illustrators' reprographic royalties. GAG admitted to having collected similar royalties since 1996. GAG's officers have repeatedly refused to disclose how much money their organization has received to date or how the money has been spent. DUTY AND COMMON INTEREST  The judge concluded that this situation justified an assertion of common interest by IPA. This means that "the party communicating [relevant information] has an interest or has a duty" to convey that information truthfully to others "having a corresponding interest or duty": "The duty need not be a legal one, but only a moral or social duty. The parties need only have such a relation to each other as would support a reasonable ground for supposing an innocent motive for imparting the information. Here the plaintiff Guild's factual allegations demonstrate that the defendants' statements were both true, and fall within the parameters of the common-interest privilege." (Emphasis added.) We hope this decision will end the two and a half years of litigation during which GAG pursued its claims against IPA and artists Brad Holland, Cynthia Turner and Ken Dubrowski of IPA, as well as attorney Bruce Lehman, former Commissioner of the US Patent Office and Terry Brown, Director Emeritus of the Society of Illustrators.   All defendants were participants in a public presentation sponsored February 21, 2008 by 12 illustrators organizations. The presentation was disrupted by GAG's officers and their attorney. A videotape of the event proves that statements which GAG alleged to be defamatory were made only in response to GAG's intervention, and that until that time, no speakers had mentioned GAG or GAG's longstanding appropriation of illustrators' royalties.  Last year, on January 12, 2010, Judge James issued a prior ruling dismissing nearly all of GAG's causes of action. This left only a claim asserted by GAG against Brad Holland. But in a response filed with the court February 4, 2010, attorney Jason Casero, serving as counsel for IPA, pointed out that GAG's remaining claim rested on an allegedly defamatory statement that Holland never made. When confronted with evidence, GAG was forced to admit it had "inadvertently attributed" the statement to Holland. GAG subsequently filed new motions in an effort to revive its claims against IPA and the other defendants. Last summer the judge consolidated GAG's multiple motions and on April 18, 2011, she dismissed all ten causes of action against IPA and all the defendants.   REPROGRAPHIC RIGHTS AND ORPHAN WORKS GAG served the lawsuit on IPA October 10, 2008, seven days after Congress failed to pass the Orphan Works Act of 2008. The Illustrators' Partnership and 84 other creators' organizations opposed that legislation. GAG had lobbied for passage of the House version of the Orphan Works bill. Mandatory lobbying disclosures document that GAG spent nearly $200,000 in Orphan Works lobbying fees. In our opinion, the issues behind the lawsuit are greater than whether an organization should be allowed to benefit from the millions of dollars that, collectively, illustrators are losing. We believe the reprographic rights issue is linked to both orphan works legislation and the Google Book Settlement, which Federal Judge Denny Chin dismissed on March 22, 2011. Each of these developments involves an effort by third parties to define artists' work and/or royalties as orphaned property, and to assert the right, in the name of the public interest or class representation, to exploit that work commercially or to appropriate the royalties for use at their sole discretion. So far, judges have affirmed that copyright is an individual, not a collective right, and that unless one explicitly transfers that right, no business or organization can automatically acquire it by invoking an orphaned property premise. Now the challenge for artists will be to see that Congress does not pass legislation to permit what the courts have so far denied. We'll have more to say about this issue in the future. For now we'd like to conclude by thanking our attorney Jason Casero, who provided us with a strong, incisive and heartfelt defense; his law firm, McDermott Will & Emery, which provided us with his services; the Volunteer Lawyers for the Arts of New York and its Director Elena Paul. We'd also like to thank Dan Vasconcellos, Richard Goldberg, and the over 700 artists and illustrators who in 2008 signed a petition asking GAG (unsuccessfully as it turned out) to drop the lawsuit; the support of so many colleagues was a great tonic at a low time. Finally we'd like to thank the representatives of the 12 organizations that comprise the American Society of Illustrators' Partnership (ASIP). ASIP is the coalition organization IPA incorporated in 2007 to act as a collecting society to return royalties to artists.   - Brad Holland and Cynthia Turner for the Board of the Illustrators' Partnership  This message may be reposted or emailed in its entirety to any interested party.

Court Rejects Google Book Settlement

Yesterday, U.S. Circuit Judge Denny Chin rejected the Book Rights Registry settlement between Google and the US Authors Guild. The $125 million commercial agreement would have rewarded both parties for the largest mass infringement of authors' copyrights in history. Instead, the judge ruled it a business deal "too far."

"A Reversal of Copyright Law" is what we called this agreement in our warning to illustrators September 29, 2009. Like the visual arts "databases" we opposed during the Orphan Works fight, we wrote:

"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."

Judge Chin held this to be the case. "A copyright owner's right to exclude others from using his property is fundamental and beyond dispute," he ruled. "[I]t is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission."

The judge also noted objections to the "Adequacy of Class Representation."  In short, this holds that neither Google, nor any organizations claiming to represent authors, nor the university libraries that gave Google "permission" to digitize their holdings, own the copyrights to the works this agreement would have allowed them to exploit. 

Therefore, they have no standing to broker deals based on claims that they represent the "class" of authors. 

The judge held this to be the case even where organizations asserted the right to "expropriate" "orphaned" royalties belonging to rightsholders.  Noting that "After ten years, unclaimed funds may be distributed to literary-based charities," the judge concluded:

"[A]t a minimum a fair question exists as to whether this Court or the Registry or the Fiduciary would be expropriating copyright interests belonging to authors who have not voluntarily transferred them. As Professor Nimmer has written: 'By its terms Section 201(e) is not limited to acts by governmental bodies and officials. It includes acts of seizure, etc., by any 'organization' as well.' 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §10.04 (Rev. Ed. 2010) (footnote omitted)." [Page 31 of the judge's ruling, emphasis added.]

In rejecting the settlement, Judge Chin also echoed the US Justice Department's antitrust objections: The deal, he wrote, "would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission..." He suggested the settlement might win approval if it were revised to cover only those who opt into the agreement.

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.

Orphan Works and the Google Settlement Part 3: Compelling Arguments

Compelling Arguments

On September 10, 2009, Marybeth Peters, Register of the US Copyright Office, testified before Congress in opposition to the Google Book Search Settlement. Her arguments on behalf of creators rights are compelling and we support them. However, we note with some irony that they are nearly identical to the arguments we made in opposing the Orphan Works bill last year. We don't know what conclusions to draw from this fact, but we think it's fair to draw attention to it.

We've picked several examples below and matched them with quotes from our own writings and testimony. In every case, the emphasis is ours.

Marybeth Peters on the Google Book Settlement: "The [Google] settlement is not merely a compromise of existing claims, or an agreement to compensate past copying and snippet display. Rather, it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come."

IPA on the Orphan Works Bill: The bill's sponsors say it's merely a small adjustment to copyright law. In fact...its provisions have been drafted so broadly it will orphan the work of working artists. Its consequences will be far reaching, long lasting, perhaps irreversible and will strike at the heart of art itself."

* * * * *

Marybeth Peters on the Google Book Settlement: "[The Book Rights Registry] is likely to have the unfortunate effect of creating a false database of orphan works, because in practice any work that is not claimed will be deemed an orphan."

IPA on the Orphan Works Bill: "As clients come to rely on these [visual arts] registries as one-stop shopping centers for rights clearance, any works not found in the registries could be infringed as orphans."

* * * * *

Marybeth Peters on the Google Book Settlement: "Compulsory licenses... are scrutinized very strictly because by their nature they impinge upon the exclusive rights of copyright holders...By its nature, a compulsory license "is a limited exception to the copyright holder's exclusive right . . . As such, it must be construed narrowly."


IPA on the Orphan Works Bill: "[The Orphan Works bill] radically abridges the fundamental principal of exclusive rights granted to creators under the copyright law, and creates a sweeping compulsory license permitting large scale unauthorized use of not only older works, the provenance of which may be difficult to determine, but also of the valuable contemporary works that are the economic life blood of those in our profession."

* * * * *

Marybeth Peters on the Google Book Settlement: "Compulsory licenses are generally adopted by Congress only reluctantly, in the face of a marketplace failure."

IPA on the Orphan Works Bill: "The Copyright Office only received about 215 relevant letters to their Orphan Works Study. From this they deduced a claim of widespread market failure in commercial markets..." " But the Copyright Office studied the specific subject of orphaned work. They did not inquire about 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."

* * * * *

Marybeth Peters on the Google Book Settlement: "In summary, the out-of-print default rules would allow Google to operate under reverse principles of copyright law..."

IPA on the Orphan Works Bill: "[The Orphan Works bill] creates 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." "[I]ts logic reverses copyright law."

* * * * *

Marybeth Peters on the Google Book Settlement: "In essence, the proposed settlement would give Google a license to infringe first and ask questions later..."

IPA on the Orphan Works Bill: "Since orphan works transactions would occur only after infringement, the rights holder would have no leverage to bargain for more than the infringer is willing or able to pay."

* * * * *

Marybeth Peters on the Google Book Settlement: "[C]opyright law has always left it to the copyright owner to determine whether and how an out-of-print work should be exploited."

IPA on the Orphan Works Bill: "Under copyright law, no author can be compelled to publish his or her work. So by what right of eminent domain can Congress give strangers the right to publish our work without our knowledge, consent or payment?"

* * * * *

Marybeth Peters on the Google Book Settlement: "The broad scope of the out-of-print provisions and the large class of copyright owners they would affect will dramatically impinge on the exclusive rights of authors, publishers, their heirs and successors."

IPA on the Orphan Works Bill: "The fundamental problem with the Orphan Works Act is that it's been drafted so broadly its use cannot be confined to real orphaned work situations." "To redefine an orphaned work as "a work by an unlocatable author" is to radically re-define the ownership of private property...Since everybody can be hard for somebody to find, this voids a rights holder's exclusive right to his or her own property."

* * * * *

Marybeth Peters on the Google Book Settlement: "Some foreign governments have raised questions about the compatibility of the proposed settlement with Article 5 of the Berne convention, which requires that copyright be made available to foreign authors on a no less favorable basis than to domestic authors, and that the "enjoyment and exercise of these rights shall not be subject to any formality."

IPA on the Orphan Works Bill: "[P]utting 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."

* * * * *

Marybeth Peters on the Google Book Settlement: "The ability of copyright owners and technology companies to share advertising revenue and other potential income streams is a worthy and symbiotic business goal that makes a lot of sense when the terms are mutually determined. And the increased abilities of libraries to offer on-line access to books and other copyrighted works is a development that is both necessary and possible in the digital age. However, none of these possibilities should require Google to have immediate, unfettered, and risk-free access to the copyrighted works of other people. They are not a reason to throw out fundamental copyright principles; they are a pretext to do so."

IPA on the Orphan Works Bill: "The internet has created a culture of appropriation; and immediate global access to artistic works has facilitated piracy, unintentional infringement and plagiary. But instant and unrestricted access to work should not be construed as a necessity just because technology has made it a possibility. That an artist's work now can be instantly transmitted around the world without the artist's permission or control does not justify a user's 'right' to take the work."

* * * * *

Marybeth Peters on the Google Book Settlement: "[T]he settlement would inappropriately interfere with the on-going efforts of Congress to enact orphan works legislation in a manner that takes into account the concerns of all stakeholders as well as the United States' international obligations.

IPA on the Orphan Works Bill: "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...For artists, the most troubling part has been our near-total exclusion from the legislative process.

"On July 11th [2008], on behalf of all those who oppose this bill, [we] submitted Amendments to the Subcommittee on Courts, the Internet and Intellectual Property. Those Amendments would make this bill a true orphan works bill. The Amendments have never been considered...This is no way to re-write U.S. copyright law."

Q.E.D.

The Register's full testimony from September 10, 2009 can be found here.

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.

Orphan Works and the Google Book Settlement / Part I

We’ve been asked for news about the Orphan Works bill. Last June Intellectual Property Watch warned that it would be back during the summer. And on June 11th, Senator Orrin Hatch confirmed his intent to reintroduce the bill. We immediately put out a notice to artists. But summer’s over and we’ve had no further news. So far, so good.

Of course Congress has had other priorities: the ongoing financial mess, the health care debate and – on the copyright front – the Google book search controversy. For those who haven’t followed the news about this Google assault on copyright, we’ll try to summarize it.

The World’s Largest Library (Or is it Bookstore?)
In 2004, Google announced its intent to digitize all of the world’s 80-100 million books – and to make most of them commercially available as orphaned works. The plan has been controversial since its inception.

Google began with the cooperation of several major libraries. The libraries gave Google access to their holdings. The problem is that libraries are libraries; they don’t own the copyrights to the books they hold. In short, they gave Google the rights to other people’s work. So far, Google has scanned over 10 million books.

In 2004, the Authors Guild and Association of American Publishers sued Google for copyright infringement. Last October the parties settled. The resulting agreement is 141 pages long, with 15 appendices of 179 pages. The implications for copyright holders are not clear, but what the litigants would get is breathtaking. As Lynn Chu, a principal at Writers Representatives LLC, wrote in the Wall Street Journal, March 28, 2009:

“[I]f approved by the federal court, [it would] permit Google to post out-of-print books for reading, sales, institutional licensing, ad sales, and other publishing exploitations, by Google, online. The settlement gives the class-action attorneys $30 million; a new, quasi-judicial bureaucracy called the Book Rights Registry $35 million...and $45 million for owners infringed up to now -- about $60 a title.” http://online.wsj.com/article/SB123819841868261921.html

Google would keep just over a third of the profits generated by selling these books online. The rest would go to the Book Rights Registry run by publishers’ and authors’ representatives. In other words, 63% would go to the parties that sued Google. In theory, the Registry would attempt to locate the authors of orphaned works and pay them royalties. But as Ms. Chu points out, the parties that sued Google – and would therefore benefit from Google’s infringement – have themselves traded away other people’s rights in the bargain:

“No one elected these ‘class representatives’ to represent America's tens of thousands of authors and publishers to convey their digital rights to Google. Nor are the interests of this so-called class identical.”

The US Department of Justice apparently agrees. Last Friday, it filed an objection to the settlement and advised the court to reject the settlement as written. On page 9 of their brief, the DOJ attorneys write:

“The structure of the Proposed Settlement itself, therefore, pits the interests of one part of the class (known rightsholders) against the interests of another part of the class (orphan works rightsholders). Google’s commercial use of orphan works will generate revenues, which will be deposited with the Registry. Any unclaimed revenues, however, will inure to the benefit of the Registry and its registered rightsholders. Thus, the Registry and its registered rightsholders will benefit at the expense of every rightsholder who fails to come forward to claim profits from Google’s commercial use of his or her work...

“The greater the economic exploitation of the works of unknown rightsholders by Google and the Registry, the stronger the incentive for known rightsholders to retain the unclaimed revenues for themselves.” [Emphasis added]

The Department of Justice also warns that the settlement fails to comply with copyright, antitrust laws and the rules of class action litigation. http://www.usdoj.gov/opa/pr/2009/September/09-opa-1001.html

The US federal court was scheduled to hold a fairness hearing October 7. But over 400 objections from around the world have been filed by rightsholders, competitors to Google and (in addition to the US government) the governments of France and Germany. Yesterday we received news that the fairness hearing has been delayed.

The Google settlement has also been condemned by Marybeth Peters, Register of the US Copyright Office. Testifying before the House Judiciary Committee last Wednesday, Ms. Peters stated that it would allow Google to “operate under reverse principles of copyright law,” adding “it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come.” http://www.copyright.gov/docs/regstat091009.html

We haven’t had much to say about this agreement because, with the notable exception of childrens’ book illustrations (which for purposes of the settlement are considered part of the text) the agreement doesn’t include visual art. Yet like the Orphan Works bill itself, the Google Book Settlement would be a radical change to copyright law.

Tomorrow we’ll examine some of the ways in which this settlement parallels the Orphan Works bill.

Senate Hotline Revisited

Yesterday, many of us received a letter from our Senator, one of the most prominent lawmakers in the country, expressing his support for strong intellectual property rights protections as a necessary stimulus to creativity and entrepreneurship.

He stated that the Shawn Bentley Orphan Works Act of 2008, S.2913 “is currently being carefully considered by the Senate,” and he assured us:

“Members of my staff have met with representatives of artists and small business owners who have expressed many of the same concerns you mentioned. I will continue to closely study developments on this bill and I will work with both my Senate colleagues and the...artist community to ensure that any bill that is ultimately passed appropriately balances these competing concerns.”

We’ve written to the Senator to inform him that the Shawn Bentley Act passed in the Senate on September 28, 2008, by unanimous consent, including his.

Frankly, we don't blame the Senator for not knowing that he's allegedly consented to a bill that would strip his constituents of their intellectual property rights without due process. Considering the way this controversial bill was drafted behind closed doors and passed by hotline, we suspect many Senators aren’t aware that they’ve “consented” to this radical change to U.S. Copyright law either.

This makes it all the more important that the House not pass their version of this bill (H.R.5889) by a similar legislative maneuver.

Orphan Works legislation should be held over until the next Congress and subjected to an open and transparent public debate. Laws affecting the intellectual property rights of all citizens should not be brokered by lawyers and lobbyists in backroom deals.

Monday the Senate will convene for a lame duck session. A spokesman for House Speaker Pelosi confirmed yesterday that the House will convene on Tuesday. For now, the House is where we need to focus our attention.

House sources continue to assure us that Orphan Works is not on the agenda. However every prior effort to pass the bill by legislative maneuver was prefaced by similar assurances, so we believe it’s in our best interests to stay vigilant. We’ll update you as we learn more.

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

Starting Monday we’ll conclude our series of little known facts about this legislation.

Orphan Works Update: House Recesses Until December

The lame duck session that started yesterday recessed abruptly this morning. Lawmakers plan to reconvene December 8th, subject to the Chair's discretion. We don't know how long they'll be in session when they return and economic developments could bring them back sooner.

We'll keep our eyes peeled, our ears open and update you when we learn more. In the meantime, have a great Thanksgiving, rest up and get ready for another bumpy ride. Thanks to all of you for your dedication and perseverance.

THE HOUSE ORPHAN WORKS BILL (H.R. 5889) IS MOVING IN THE HOUSE NOW

Phone, fax, email these congressman immediately:

Delahunt phone (202) 225 3111 fax (202) 225-5658
phone: (617) 770-3700 fax: (617) 770-2984

Conyers phone: (202) 225-5126 fax: (202) 225-0072
phone: (313) 961-5670 fax: (313) 226-2085

Nadler phone: (202) 225-5635 fax: (202) 225-6923
phone: (212) 367-7350 fax: (212) 367-7356

Berman phone: (202) 225-4695 fax: (202) 225-3196
phone: (818) 994-7200 fax: (818) 994-1050

Express your outrage at the way this is being done

We've been getting assurances all day that the bill was "dead for this year."

Tell them not to pass this anti-copyright law

• under cover of night
• under cover of economic crisis
• under cover of another televised debate

Tell them this is an outrageous way to re-write the copyright laws of the United States

The Orphan Works Bill: Not Dead Till It’s Dead

Wired Magazine has posted an article: “'Orphan Works' Copyright Law Dies Quiet Death”
http://blog.wired.com/27bstroke6/2008/09/orphan-works-co.html Well, we can hope. But we’re dealing with a.) a fluid situation in Washington; and b.) special interests determined to pass this bill. So our assessment:

It’s not dead till it’s dead.

According to our DC sources, the most efficient way for Congress to pass this bill now would be for the House to scrap their own version and adopt the Senate’s. There are procedural ways they can do this. Some say they will; some say they won’t. It’s enough to know they can.

There are special interest groups promoting the House bill now: big stock houses, for example, like Getty and Corbis, and groups working with them. They want an infringer-friendly “dark archive,” a privately-owned “entity” sanctioned by the Copyright Office where infringers would file a notice of intent to infringe a work.

Since artists would not have access to this dark archive, the “sanctioned entity” would be of no use to us until our work has been infringed and we’ve file a case in federal court. And then it would mostly serve the interests of infringers – letting them prove in court they had done the minimal necessary paperwork before they infringed.

The important thing to remember about the House bill is that there is no protection for artists in it. It would simply give more middlemen a chance to profit from this gutting of copyright law.

We know it’s hard to ask Congress to focus on copyright law with a financial crisis looming. But we didn’t pick this fight and it’s our rights at stake if we don’t.

There is no national emergency for orphan works that requires Congress to pass this bill - which was drafted in secret - in the dark of night.

Please contact your House representative today. Tell them not to pass the House bill. Tell them not to adopt the Senate’s.

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

TAKE ACTION: EMAIL CONGRESS NOW
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Please post or forward this message immediately to any interested party.

Orphan Works: Connect the Dots

1. Web firms quietly win copyright victory in Congress

SAN FRANCISCO (MarketWatch) Sept 29 -- As the media turned its attention last weekend to battles on Capitol Hill over the fate of the proposed Wall Street bailout bill, Internet companies including Google Inc. and Microsoft Corp. quietly walked away with a legislative victory that could facilitate their use of copyrighted material.

The Senate on Friday passed the Orphan Works Act of 2008, legislation that weakens copyright protection for works whose owners cannot be located. The legislation has now been referred to the House Judiciary Committee.

The legislation requires only that a company make a "reasonably diligent" search to locate a copyright owner before using their work in media including the Internet, and limits compensation required for the use of an infringed work.

-By John Letzing, MarketWatch Sept. 29, 2008
http://www.marketwatch.com/news/story/web-firms-quietly-win-copyright/story.aspx?guid={E21206C0-98F5-459B-9506-8133CBD82859}&dist=hpts


2. Google Acknowledges Copyright Infringement Claims Could Harm Business

ILLUSTRATORS PARTNERSHIP Sept 30 -- In March 2007, Google filed a mandatory 10-Q Filing with the Securities and Exchange Commission. In it, they acknowledged: "copyright claims filed against us [by copyright owners] alleging that features of certain of our products and services, including Google Web Search, Google News, Google Video, Google Image Search, Google Book Search and YouTube, infringe their rights."

Google admitted that "[a]dverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements or orders preventing us from offering certain functionalities, and may also result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business." (Italics added.)

--Brad Holland and Cynthia Turner, Illustrators Partnership
http://investor.google.com/documents/20070331_10-Q.html


3. Google Sees Value in Orphan Works

ILLUSTRATORS PARTNERSHIP March 8, 2006 -- At the Copyright Office's Orphan Works Roundtables, July 26-27, 2005, Alexander MacGilivray of Google stated:

"The thing that I would encourage the Copyright Office to consider is not just the very, very small scale -the one user who wants to make use of the [orphan] work - but also the very, very large scale - and talking in the millions of works. - page 21

"Google strongly believes that these orphan works are both worthwhile, useful, and extremely valuable." - page 119

"We expect that our use of these orphan works will likely be in the 1 million works range..." (Italics added.) - page 166

"[W]e know that many of them [orphan works] will be in the public domain, that most of their authors won't care. But there are a few [authors] that really will care and they will come forward [to claim authorship] and it will be extremely inefficient for us." (Italics added.) -page 166
(Page numbers are from Copyright Office transcripts.)

Orphan Works Roundtables were held by the US Copyright Office July 26-7, 2005 in Washington DC
http://www.copyright.gov/orphan/transcript/0726LOC.PDF


4. Google Donates $3 Million to U.S. Library of Congress

Australian IT Nov 23, 2005 -- The U.S. Library of Congress is kicking off a campaign to work with other nation's libraries to build a World Digital Library, starting with a $US3 million donation from Google.

-Eric Auchard in San Francisco | November 23, 2005
http://australianit.news.com.au/articles/0,7204,17339145%5E15409%5E%5Enbv%5E15306-15322,00.html

Orphan Works: Legislation by Misdirection

The architects of the Orphan Works Act have already placed testaments to the bill on their websites:

Senator Leahy: http://leahy.senate.gov/issues/OrphanWorks.html
Senator Hatch: http://tinyurl.com/3jsq5o

They say this "landmark intellectual property bill" will "unlock proverbial attics of copyrighted works" whose owners can't be found. Is that really what all the fuss has been about?

No. If that were the case, the problems could be solved with a modest expansion of Fair Use. It's not proverbial closets we fear seeing unlocked. It's our commercial inventories, which would be exposed to potential infringement.

And while one Senator pointedly writes that the bill "does not dramatically restructure copyright law" (emphasis added), he's right: it doesn't "restructure" it. It merely redefines an orphaned work so broadly that it would let users infringe millions of works as orphans on the premise that some might be.

And why, if the bill is only meant to benefit libraries and museums, have the doors been opened wide for commercial usage?

A Fundamental Change to Copyright Law

For us, the saddest of these postings is on the Copyright Office website itself. http://www.copyright.gov/orphan/ There, Marybeth Peters, the Register of Copyrights explains that this bill is necessary because the U.S., in trying to harmonize our law with international agreements, has created too many orphans.

But that's not the sad part. There are orphans. She's entitled to her belief. And as Register of Copyrights, she's entitled to lobby for a change in the law. But what's sad is that the Register, who we've respected for years as an advocate for creators rights, has chosen to justify this legislative scheme by mischaracterizing the honest objections that creators have raised in good faith, again and again.

Here's how she summarizes the objections of the hundreds of thousands of artists, writers, photographers and musicians who oppose this bill:

"Some critics [she writes] believe that the legislation is unfair because it will deprive copyright owners of injunctive relief, statutory damages, and actual damages. I do not agree."

Well, those are all real issues, but they've never been our focus. We've made our case clearly, simply and often.

Our objection goes to the heart of the matter. Here it is, as one of us expressed it in his opening statement at the Small Business Administration Roundtable, August 8:

"The bill's sponsors say it's merely a small adjustment to copyright law. In fact, its logic
reverses copyright law. It presumes that the public is entitled to use your work as a primary right and that it's your obligation to make your work available. If this bill passes, in the United States, copyright will no longer be the exclusive right of the copyright holder."
- From "Orphan Works: A Hobson's Choice for Artists," by Brad Holland August 8 2008

And in case the point needed elaboration:

"This exclusive right matters to artists for three reasons:
· Creative control: No one can change your work without your permission;
· Ownership: No one can use your work without your permission;
· Value: In the marketplace, your ability to sell exclusive rights to a client triples the value of your work.
- http://ipaorphanworks.blogspot.com/2008/08/orphan-works-hobsons-choice-for-artists.html

The Orphan Works Act passed by the Senate Friday explicitly voids that exclusive right as expressed in Article 9 of the Berne Copyright Convention:

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.
http://www.law.cornell.edu/treaties/berne/9.html

There can be no responsible argument that the Orphan Works Act is consistent with Article 9 of Berne. None.

Simple reason: the Orphan Works Act does not limit exemptions to an author's exclusive right to "certain special cases." Case closed.

There are many other reasons to object to this terrible bill: it violates the entirety of Article 9. But we only need to make this single point to show that it's a radically new copyright law.

Hiding the Rabbit

The key to the Congressional magic act has been to hide an anti-copyright rabbit in an Orphan Works hat while misdirecting attention to a tedious debate about "reasonably diligent searches," injunctive relief and statutory damages.

Meanwhile the secret of the trick has been simple: redefine an orphaned work as "a work by an unlocatable author."

This new definition would permit any person to infringe any work by any artist at any time for any reason - no matter how commercial - so long as the infringer found the author sufficiently hard to find.

Since everybody can be hard for somebody to find, this voids a rights holder's exclusive right to his own property. It defines 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.

This is a new definition of copyright law.

The headline on the Copyright Office website should read:

In the United States, Copyright Will No Longer Be the Exclusive Right of the Copyright Holder.

This headline would at least have the virtue of candor.

On March 13, the Register of Copyrights testified before the House IP Subcommittee. On page 1 of her testimony she said:

"Every country has orphan works and I believe that, sooner or later, every country will be motivated to consider a solution. The solution proposed by the Copyright Office is a workable one and will be of interest to other countries."
http://www.copyright.gov/docs/regstat031308.html

You can bet it will be of interest to other countries, because the copyrights of other countries can now be orphans in the U.S. too. The Copyright Office and the Senate have thrown down a gauntlet to the world.

Write your congressional representatives today and tell them not to follow.

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

TAKE ACTION: EMAIL CONGRESS NOW
Tell the House Judiciary Committee not to adopt the Senate version.

We've supplied a special letter for this purpose:
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Please post or forward this message immediately to any interested party.

Orphan Works: The Devil's Own Day

Never Too Busy to Pass Special Interest Legislation

As lawmakers struggled Friday to clean up the mess on Wall Street, sponsors of the Orphan Works Act passed more special interest legislation. Their bill would force copyright holders to subsidize giant copyright databases run by giant internet firms.

Like the companies now needing billion dollar bailouts, these copyright registries – which would theoretically contain the entire copyright wealth of the US – would presumably be "too big to fail." Yet it's our wealth, not theirs, the scheme would risk.

Small business owners didn't ask for this legislation. We don't want it and we don't need it. Our opposition numbers have been growing daily. So Friday, the bill's sponsors reached for the hotline.

What is Hotlining?

Critics of hotlining say "that lawmakers are essentially signing off on legislation neither they nor their staff have ever read."

"In order for a bill to be hotlined, the Senate Majority Leader and Minority Leader must agree to pass it by unanimous consent, without a roll-call vote. The two leaders then inform Members of this agreement using special hotlines installed in each office and give Members a specified amount of time to object – in some cases as little as 15 minutes. If no objection is registered, the bill is passed."
- Roll Call, Sept 17, 2007

In other words, a Senate bill can pass by "unanimous consent" even if some Senators don't know about it.

The Devil's Own Day

Senators Leahy and Hatch hotlined the Orphan Works Act twice last summer. Each time came at the end of a day, at the end of a week, near the end of a legislative session. Each time lawmakers were distracted by other issues and other plans. Each time artists rallied quickly and each time a Senator put a hold on the bill.

Friday the Senators found a new opportunity.

With lawmakers struggling to package a 700 billion dollar bailout to avert a worldwide economic meltdown, with the rest of the country focused on Presidential debates, with Washington in chaos and Congressional phone lines jammed, they hotlined an amended bill. On short notice, even the legislative aides we could reach by phone said they didn't have time to read it. And so, while we were rushing to get out a second email blast to artists, the bill passed by "unanimous consent" - in other words, by default.

What better way to pass a bill that was drafted in secret than to pass it while nobody's looking?

Since Friday, artists have been conducting bitter post mortems on their blogs. That's understandable, but it's not time yet.

"When Sherman arrived at Grant's headquarters later that evening, he found the general - broken sword and all - chewing on a soggy cigar in the rain, which had begun soaking the battlefield.

'Well, Grant,' Sherman said to his friend, 'we've had the devil's own day, haven't we?'

'Yes,' replied Grant, 'lick 'em tomorrow, though.'"

The Senate passed their bill Friday, but the House hasn't. There's still time to write, phone and fax your congressional representatives. Tell them not to let the House Judiciary Committee fold their bill and adopt the Senate's.

Tell Congress to protect the private property of small businesses. Lick 'em tomorrow.

– Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership
Quote from "The Devil's Own Day," by Christopher Allen, January 2000 America's Civil War Magazine

TAKE ACTION: EMAIL CONGRESS TONIGHT
Tell the House Judiciary Committee not to adopt the Senate version.

We've supplied a special letter for this purpose:
http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11980321

Please post or forward this message immediately to any interested party.

The Orphan Works Act: Responses to the House Judiciary Committee

The following statements about the Orphan Works Act were sent from the House Judiciary Committee to a Congressman. The Congressman asked for responses from visual artists. The language in the statements is quoted verbatim from the Judiciary Committee document.

Judiciary Committee: An infringement today will continue to be one after enactment of orphan works legislation. Critics of orphan works measures frequently seem to miss this point, often wrongly suggesting that an orphan works law will legitimize infringing acts.

Illustrators' Partnership: No one is missing the point. Under this bill, infringements may continue to be infringements, but millions will be infringements in name only. That’s because these bills would remove any effective remedy for the infringement whenever the infringer can successfully assert an orphan works defense. The defense need not be valid, only successful. That means we’ll see millions of so-called “good faith” infringements, among which bad actors will be able to hide like needles in a haystack.

What bad actor, if caught, will have a Perry Mason Moment and admit he’s guilty of willful infringement? Not if he can assert an orphan works defense and dare the artist to sue. And under this bill, any artist who sues will have to be sure of winning, because without the possibility of statutory damages and attorneys’ fees, it’ll be too expensive to lose. Since lawyers will be unwilling to accept such cases on contingency (because there’s no guarantee the infringer will have to pay), this law will effectively deprive rights holders of legal counsel, expert witnesses, court costs, etc. - the very tools they’d need to legally prove bad faith.

Judiciary Committee: Orphan works proposals are tailored to address the remedies that will be available under certain prescribed circumstances. In an instance where a good faith user has performed and documented a qualifying search and satisfied each of the other statutory conditions (i.e. filed a notice of use with the Copyright Office, placed an orphan notice on their use, etc.) the user will ordinarily be subject to the payment of reasonable compensation to the owner of the orphaned work if that owner is later identified.

Illustrators' Partnership: Note the key phrase: “if that owner is later identified.” Infringements can occur anytime, anywhere in the world, so most will never be discovered by rights holders. This undermines the case for “reasonable compensation,” because compensation can’t be reasonable if it’s never paid.

Judiciary Committee: Reasonable compensation is intended to reflect the amount a willing buyer and willing seller would have negotiated for a licensed use prior to the infringement. Contrary to popular criticism, [reasonable compensation] is not an amount that must be accepted by an owner that is dictated by the user after infringement.

Illustrators' Partnership: Several points:

• Since orphan works transactions will occur only after infringement, the copyright owner will have no leverage to bargain for more than the infringer is willing or able to pay.
• Unless the owner accepts the infringer’s offer, he’ll have to go to federal court.
• If the court accepts the infringer’s claim that the infringer made a reasonably diligent effort to find the owner,
• Then it becomes the owner’s burden to prove the market value of his work; but
• To prove this, the owner will have to prepare a legal case with expert witnesses;
• These are expenses the owner will not be able to recover from the infringer.
• Filing fees, legal expenses and court costs could well exceed the so-called “reasonable fee.”
• And now the Catch 22:
• There’d be no limit to the amount of damages and legal fees the infringer could get from the owner in a countersuit.

Judiciary Committee: [Reasonable compensation] is intended to approximate the results of a market-place negotiation. In many cases, reasonable compensation will approximate the amount a copyright owner would have received as actual damages. The amount may also approximate the amount of statutory damages that would have been awarded by a court.

Illustrators' Partnership: Regardless of whatever the bill is “intended” to do, these intentions are unlikely to translate so cleanly into the rough and tumble of the marketplace. In real life, it’s safe to assume that serial infringers of orphan works will establish low “reasonable” fees, which will effectively become the legal standard for “reasonable compensation” in lawsuits regarding orphan work uses. Artists might never agree to these low fees if contacted “prior to infringement,” but they’d have no choice but to accept them if “offered” after the fact.

Judiciary Committee: The House bill requires that the user of an orphan work engaged in a qualified search to identify the owner prior to and proximate to the use; that the search was properly documented; that a notice of use was filed with the Copyright Office; that detailed best practices to be promulgated by the Copyright Office for conducting such a search were followed; or that an orphan works symbol was placed on the infringing use.

Illustrators' Partnership: These provisions are of no use to a rights holder unless he goes to court. And as business people, we make our livings from voluntary business transactions, not expensive lawsuits with all the uncertainty that comes with them.

In fact, uncertainty in commercial markets will be this bill’s chief legacy. The language of the drafts defines an infringer’s “qualifying search” as one that is reasonably diligent. But reasonable diligence is never defined. The Copyright Office has said that these ambiguous terms will be left to the courts to define on a case-by-case basis. But since any work might become an orphan in one legal proceeding and not in another, it’ll take a decade of expensive lawsuits and appeals to learn how the law will ultimately define these vague terms. Since artists are unlikely to have the resources for litigation, infringers may generally win by default. Why should copyright owners have to go to court on a regular basis to contest the diligence of an infringer’s search or to prove the value of their own property for uses they never authorized?

Judiciary Committee: As an explicit measure to discourage malicious actors who might seek to exploit the orphan works limitation in furtherance of commercial piracy, the House bill was expressly amended to prohibit the limitation from being used in connection with the production of useful articles (i.e. coffee mugs, wallpaper, rugs, clothing, etc.). So the [use of art on a] coffee mug [for] example is expressly prohibited by the House bill even in a circumstance where the user theoretically sought to meet the aforementioned statutory pre-conditions.

Illustrators' Partnership: Commercial piracy is not limited to rip-offs of art on “useful articles.” If the bill’s drafters have exempted designs for coffee mugs, wallpaper, rugs and clothing, then they’ve conceded that the bill will lead to the piracy of visual art. Having acknowledged that, why would they permit other forms of art to be pirated? Are designs on coffee mugs more deserving of protection than medical illustrations, editorial cartoons, news photos, book illustrations, advertising art, fine art?

Judiciary Committee: There is no present requirement for an author to register their work or place a copyright notice on it to qualify for the protection of U.S. copyright law. It is false that registration will become mandatory after the enactment of orphan works legislation. There is nothing in either the House or Senate versions of the bills that will require copyright owners to register their works or place copyright notices on them to enjoy copyright protection.

Illustrators' Partnership: That’s because Congress cannot ”require” artists to register their work without openly violating the Berne Convention, NAFTA, TRIPS, WIPO and WTO treaties. Yet in reality, the effect of this legislation will be the same as compulsory registration: artists who don’t register their work will find it vulnerable to orphan infringement. Or to put it another way: the bill would not impose registration on rights holders; it will just endanger the work of those who don’t impose registration on themselves.

Judiciary Committee: As previously noted, a "user" of an orphan work will be required by the House bill to, inter alia, file a "notice of use" with the Copyright Office prior to use and required to place an orphan works symbol, which will be prescribed by the Copyright Office, on their work.

Illustrators' Partnership: As currently written, the “notice of use” is a dark archive. That means if someone infringes your work and has filed a Notice of Use, you wouldn’t know about it unless:

• you discover you’ve been infringed;
• you sue the infringer in federal court;
• the infringer asserts an Orphan Works defense.
• Only then can you file a request to see if your work is in the archive.
• In other words, the notice of use is of no probative value to the rights holder at all, unless by luck, he finds that he’s been infringed and has to go to court.

As for the orphan works symbol to be “prescribed by the Copyright Office” and placed on all so-called orphaned work: it will act as a “come-and-get-it notice,” signaling to new infringers that a copyrighted work has already been orphaned by previous infringers and is therefore free for further exploitation.

Judiciary Committee: Orphan Works critics claim that copyright protection will no longer exist at the moment of creation under an orphan works structure, that new requirements will be imposed. No new statutory requirements are imposed on copyright owners to establish protection or ownership nor is the manner for determining ownership altered by the House bill. (Italics added)

Illustrators' Partnership: Note the modifier “statutory.” To repeat, we understand that the Copyright Office cannot propose statutory registration requirements. That would explicitly violate international copyright law and copyright-related treaties. Instead, the Copyright Office has proposed that Congress “limit” the remedies for Infringement: this pulls the teeth out of copyright law because:

• Remedies for infringement are the only means rights holders have to protect their work from thieves.
• There is no Copyright Bureau of Investigation; no Copyright Police Force.
• Rights holders have to police their own copyrights, and
• Penalties for infringement are the only weapon the law gives us.
• Remove those penalties and you remove uncertainty in the minds of bad actors.
• Under current law, if an infringer wants to rip off your work, he can guess that a.) you may never find out about it; and b.) it may not be registered.
• He may guess correctly but – he can’t be sure.
• This uncertainty is the key safeguard against infringement, because
• If the bad actor guesses wrong, he’ll be liable under current law for statutory damages of up to $150,000 per infringement, plus attorneys fees.
• This is a powerful incentive for a thief not to risk stealing work. So
• In the real world, uncertainty in the mind of a bad actor is the only weapon we have to protect our copyrights.
• Remove that uncertainty and you remove the only realistic safeguard the law provides.

Judiciary Committee: [Critics charge that c]opyright owners will be statutorily required to "register" their works with private databases that have yet to be created to protect their exclusive rights in an orphan works environment. There is no such requirement in the House bill.

Illustrators' Partnership: For the third time: we acknowledge that international agreements with our foreign trading partners prohibit Congress from “statutorily” requiring registration. But the proposal for commercial registries (now referred to in the bill as “databases”) has been there from the beginning. See page 106 of the Copyright Office’s 2006 Report on Orphan Works:

“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector..." http://www.copyright.gov/orphan/orphan-report.pdf

And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:

Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries.
Holland: But what if I exercise my exclusive right of copyright and choose not to register?
Carson: If you want to go ahead and create an orphan work, be my guest!
- From my notes of the meeting

The fact that this law would orphan unregistered work presents copyright owners with a Hobson’s Choice: either digitize your life’s work and metadata at your own expense and entrust it to privately-owned commercial “databases” or - see it exposed to potential infringement. But why should any rational business person voluntarily give access to his commercial inventory and client contact information to outside business interests?

Judiciary Committee: One of the ends of orphan works legislation is to facilitate the ability of copyright owners to receive greater compensation for the use of their works.

Illustrators' Partnership: If this were true, we would not be spending our own time and money opposing this bill. But in fact over 60 creators organizations do oppose it: http://capwiz.com/illustratorspartnership/home/ These groups represent hundreds of thousands of illustrators, photographers, fine artists, writers, songwriters, performers and countless small businesses that serve and are dependent on the creative community.

Judiciary Committee: To facilitate [licensing] transactions, it is desirable and necessary for prospective users to have the means of identifying the owner of the work as well as the ability to contact them to seek to negotiate a license.

Illustrators' Partnership: Absolutely true, but it’s incorrect to assume this bill is necessary for that purpose. As successful business people, we don’t need government to legislate a quasi-compulsory license to replace our voluntary business transactions. We know how to make ourselves available to clients and we know how to negotiate licenses.

According to the Licensing Industry Merchandising Association, licensing is now a $187 billion dollar industry. Creators are responsible for a robust sector of the U.S. economy. We employ and support agents, directories, source books, web sites, archives, internet portals and other advertising venues to make ourselves available to users. Not only we, but all these hundreds of thousands of small businesses will be harmed, not helped, by a bill that removes effective protections for the work we create and trade in.

Judiciary Committee: The more owners voluntarily contribute to the creation of a meaningful and accessible public record of their works, which includes licensing information, the better for all parties. This includes the owner, potential users who are searching for them and the general public who will benefit from new uses of creative works.

Illustrators' Partnership: Again, why should any business owner be required to give his licensing information to outside business interests? Consider the potential for unauthorized use or abuse! Moreover, many artists, such medical illustrators, frequently enter into confidentially agreements with their clients, agreeing to protect their clients’ trade secrets, patient or victim information and medical litigation materials from exploitation. These agreements would preclude them from displaying their work and client information in a public record.

Judiciary Committee: While the law will not, in any way, require owners to register their works or copyright information with any private entity, the fact is that the easier it is for an owner to be identified and located, the less likely it is that a user will be able to prevail in the assertion of a claim that the work was an orphan and that the owner could not be identified and/or located.

Illustrators' Partnership: For the fourth time: to say that the law will not “require” registration is misleading. The problem with “voluntary” registries is that you can’t find a picture in a registry if it’s not there. That means that any picture – published or unpublished, professional or personal – that hasn’t been registered in one of these commercial databases could be declared an orphan for legal purposes, even if the artist is alive, easily accessible to clients and prudently managing his copyrights.

Registries would merely benefit two classes: a.) infringers – who could use a non-productive search to declare unfound works as orphans; and b.) owners of registries, who could cut themselves in on the multi-billion dollar licensing industry, currently functioning well without them.

Judiciary Committee: [But] if the owner can be easily found, then the orphan works limitation will in no way restrict the range of damages that are available to them in an instance of infringement. (Italics added.)

Illustrators' Partnership: Several points:

• The presumption that owners of contemporary work can’t be “easily found” is false. An owner may be hard to find if he’s died or abandoned his copyrights – that would be a true orphaned work. But this bill re-defines an orphan as any work by any author that any potential user ever finds hard to find. Sooner or later, that could be every work by every author. This bill will define millions of works as orphans on the premise that some may be.

• Why must an owner be “easily found” by any parties other than those whom the owner chooses to do business with? Is there a national emergency in visual images that requires legislation to regulate this sector of the free market?

• There is no need for government intervention here. We are professionals. We’re alive, working and managing our copyrights. We can be located. Our clients locate us all the time. But that doesn’t mean that anyone anywhere can find us. And frankly, why should it? What if 1000 people can find me but one person can’t? Why should that person get a free pass to use my intellectual property? Won’t that give infringers an incentive not to find rights holders? Basing a law on this questionable premise is not solving an orphaned work problem. It’s legalizing the taking of private property.

• The argument that artists can always resolve orphan works disputes in court is a measure of the bill’s most serious defect: Any law that drives business decisions into the courts is bad for business and bad for the courts.

• We believe our work benefits the public by being published through the channels where we wish to publish it. The current copyright law works by giving us the incentive to keep doing this. But authors’ rights are exclusive. Public interest cannot compel any creator to publish his work. So by what right of eminent domain can government give members of the public the right to publish his work for him? We’re only asking Congress to protect this basic property right.

Judiciary Committee: [Critics charge that] orphan works bill will change the laws that relate to the group registration of photographs and the registration of other types of collected works. Among other things, [they say] the expense to register will increase exponentially since works will all need to be registered individually. Nothing in the bills requires or supports this allegation.

It is true that there are already intrinsic and systematic limitations on the ability to search for individual works that are registered as part of a "group" or "collection." Today, there is no meaningful public record of individual works that an owner chooses to register in this fashion. This situation results, in part, from the persistent desire of copyright owners to limit the expense of registration. But the decision to register works individually or collectively is today an independent decision that is exercised by owners who presumably conduct a cost-benefit analysis of the value of individual registration. Nothing in the House bill mandates changes here nor fundamentally alters this cost-benefit analysis calculation. That said, the Congress may, independent of whether or not an orphan works bill is enacted, want to consider potential improvements in the copyright registration process in an oversight or legislative capacity but the timing for doing so as well as any decision to do so is speculative.

Illustrators' Partnership: At the recent SBA Roundtable (see below), one photographer said he had already registered over half a million images with the Copyright Office. Yet under this bill, he’d have to “voluntarily” re-register every single one of those images again, this time with privately-owned databases. How many databases? Who knows? And when a database fails, would he have to re-register his work again and again?

Under this bill, every rights holder will face this issue because:

• The number of works created by the average visual artist far exceeds the volume of the most prolific creators of literary, musical and cinematographic works;
• The cost and time-consumption to individual artists of registering tens of thousands (or with photographers, hundreds of thousands) of visual works, at even a low fee, would be prohibitive; therefore:
• Under this law, every artist would see thousands of his creations potentially orphaned from the moment of creation.
• No registry would be meaningful until billions of pre-existing works (both published and unpublished) from artists (both living and dead) have been digitized, color corrected, keyworded and registered; but
• Few, if any, living artists could afford the time and expense of digitizing and registering a backlog of tens (or hundreds) of thousands of their own works; therefore:
• Countless working artists would find countless existing works vulnerable to infringement from the moment this bill takes effect.

Judiciary Committee: Much of the confusion about the potential impact of orphan works legislation appears to derive from a misperception about the eligibility and availability of statutory damages to owners in infringement actions. Statutory damages are not ordinarily available to copyright owners. They are available to only those copyright owners who have registered the particular work that is infringed with the Copyright Office prior to the infringement or within three months of publication. When available, statutory damage awards generally range from $750 to $30,000. Where the infringement is proven by the owner to have been willful, the court, in its discretion, may increase the statutory damage award up to $150,000.

Illustrators' Partnership: The issue of statutory damages is a real one and we’ve already addressed it. But debating it apart from its impact on business misses the point. Artists rarely go to court and would prefer never to have to. We oppose the Orphan Works Act for fundamental reasons: it’s a bill too far!

In drafting this legislation, the Subcommittee has relied on the 2006 Report on Orphan Works issued by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. Their study did not inquire about the workings of commercial markets and there is no evidence in their report that a market failure in commercial markets exists. This fact was summarized in a joint position paper published July 15, 2008 by the Association of Independent Music Publishers & the California Copyright Conference:

“In 2004, The Copyright Office initiated a theory, with the enthusiastic support of the anti-copyright lobby, that the public was being harmed because it did not have enough current contact information for authors and owners. The Copyright Office then requested orphan works legislation without having conducted a needs assessment study, an independent audit of its registration and copyright history records, an economic impact analysis, or an evaluation of how the public, society and authors would be affected by reduced quantity and quality of art, film, television, music, video games and other copyrighted works in the future.” http://www.brandaideblog.com/pdf/Position_Statement.pdf

Because the Copyright Office never presented evidence to justify their proposed changes to commercial markets, hundreds of thousands of creators respectfully ask that this bill be withheld until it can be re-written as a true orphan works bill. Three groups: The Illustrators’ Partnership of America, the Artists Rights Society and the Advertising Photographers of America have jointly submitted amendments that would do that. These amendments can be accessed here: http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html

Brad Holland
Illustrators’ Partnership
9.1.08