1976 Copyright Act Considered and Rejected Orphan Works Legislation

When congressmen were writing the 1976 Copyright Act, they considered and rejected Orphan Works legislation for the same reasons the IPA has opposed it now. They acknowledged that there was an “orphan works problem,” but concluded that it was outweighed by the need for copyright protection for authors. Here’s how they put it then:

“A point that has concerned some educational groups arose from the possibility that... a life-plus-50 year [copyright] term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...

“It is true that today’s ephemera represent tomorrow’s social history, and that works of scholarly value, which are now falling into the public domain after 29 years [the term of copyright prior to 1978], would be protected much longer under the [1976] bill. Balanced against this are the burdens and expenses of renewals, the near impossibility of distinguishing between types of works in fixing a statutory term, and the extremely strong case in favor of a life- plus-50 system.

“Moreover, it is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making “fair use” of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights.

“The advantages of a basic term of copyright enduring for the life of the author and for 50 years after the author’s death outweigh any possible disadvantages.” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) (emphasis added)

The current Copyright Office has acknowledged this reasoning on pages 43-44 of the Orphan Works Report. But they’ve portrayed it as a lingering problem that needs to be fixed. They say the 1976 Act “locks up” “orphan” material needed by scholars. But as the quotes above show, that’s not true.

We think that Congress had it right in 1976. They concluded that out of hundreds of millions of copyrighted images, there was no way to draft an omnibus measure to distinguish between active and lapsed copyrights. They chose to err on the side of protecting private property. The new amendment would err on the side of confiscating private property “for the public good.”

The reasoning resembles last year’s Supreme Court decision giving cities the right to take your land and give it to commercial developers. It reflects a switch in thinking at the Copyright Office and reveals the influence of the Free Culture movement, which has been campaigning for years to have copyright declared an obsolete concept.

If the current Copyright law needs fixing, it’s the work-for-hire clause that should be fixed. You might mention that in the letters you write to Congress.

— Brad Holland for the Board of the Illustrators' Partnership of America

This may be republished, posted or forwarded in its entirety to any interested party.

No Time to Go Wobbly

Copyright Small Claims Courts for “orphan” infringements not viable

Some people think the Orphan Works amendment is a done deal and say the government should set up small claims courts to litigate the infringement cases that will follow.

The Orphan Works Report itself justifies this concern. It states that a “reasonable search” for a copyright holder will have to be “a very general standard” defined “by users, copyright owners and ultimately the courts on a case-by-case basis...”(p. 98, emphasis added) That means that if somebody infringes your work and you can’t “negotiate” a “reasonable fee” after the fact, you’ll have to sue them.

But copyright law is a Federal law. There are only 11 Federal Districts in the country with approximately 100 US District Courts. Would you have to travel to one every time you need to file a suit? If so, you wouldn’t be able add travel and lodging expenses to your claim. Nor could you add court costs or attorneys’ fees, even if you’ve registered the work. That wouldn’t be permitted by the “limitation on remedies.” The Orphan Works amendment virtually guarantees that the cost of suing an infringer who won't pay will be greater than whatever you could get back from a lawsuit (and of course, you might not win).

By “limiting remedies,” the Orphan Works amendment would create a no-fault license to infringe. Last Friday, I asked Copyright Office attorneys how artists scattered across the country can be forced to go to Federal Courts to get minimum payment for infringed work. Their answer was they weren’t sure, but are considering establishing a copyright small claims court.But I don’t see how that resolves the jurisdictional problem: Are we supposed to believe the government’s actually going to set up a federal small claims court in every city and town in America just to hear copyright cases? I don’t think so. And what if you live in one city and the infringer somewhere else?

Another problem with relying on small claims courts is that awards are limited to $2,000. That would cap the “reasonable fee” the court could allow for any usage - regardless of the commercial value of the usage and the number of works infringed. Small claims judgments can’t be enforced. And since an infringer would only have to say he couldn’t read your signature on a picture to claim you were “hard to locate,” judges in a majority of cases might have to find for the infringer.

The whole idea of legalizing infringement and making artists go to court to get paid is absurd. The Orphan Works Report is a Rube Goldberg plan, designed by legal scholars and Free Culture advocates who want to make the public a generous gift of other people’s work - and supported by companies like Google who want a vast inventory of royalty-free images to sell access to. The hope that artists will lie down and take this — if we can just get a small claims court for city or state judges to administer federal copyright law - is a thin sugar coating on a poison pill. It certainly isn’t practical and may not be legal. Rather than rise to the bait, we think artists should oppose the Orphan Works amendment outright.

This is no time to go wobbly.

This may be republished, posted or forwarded in its entirety to any interested party.

Webcast: Orphan Works Debate at Washington College of Law

On February 24, the Washington College of Law presented a timely Orphan Works Debate. A webcast of the program is now available. It is 2 hours long, with one hour devoted to each panel. You will need Windows Media Player to view it. Follow these links:

http://www.wcl.american.edu/ipclinic/orphan_works.cfm
On this page look under the horizontal rule line for the heading that says:
EVENT WEBCAST (Click Here)
Password: "ipclinic"
Click on the link, and enter the password.

For those who don’t yet know, Congress is at work on a major change to U.S. Copyright Law. Orphan Works legislation is now being fast-tracked in both the House and Senate. It would seriously impact the careers of illustrators and photographers by limiting or removing penalties for infringement where works have been published without identifying information. The proposed legislation would affect both foreign and domestic work and it would be retroactive. Joining in the discussion were representatives of groups who both favor and oppose these changes.

Prue Adler (Association of Research Libraries),
Jonathan Band (counsel to the Library Copyright Alliance),
Kathleen Franz (American University History Dept.),
Stephen Gottlieb (Recording Industry Association of America),
Brad Holland (Illustrators' Partnership of America),
Robert Kasunic (U.S. Copyright Office),
Eugene Mopsik (American Society of Media Photographers),
Jay Rosenthal (counsel to the Recording Artists Coalition),
Jason Schultz (Electronic Frontier Foundation),
Eric Schwartz (Smith & Metalitz),
Matt Skelton (U.S. Copyright Office),
Jule Sigall (U.S. Copyright Office),
Rebecca Tushnet (Georgetown Law Center),
Jennifer Urban (USC Law School, who filed comments for documentary filmmakers).

For illustrators who would like to go directly to an analysis of this legislation’s effect on our profession, Brad Holland's presentation begins at 68:10 minutes.

Sincerely,
The Board of the Illustrators’ Partnership of America

Orphan Works Express

Congress is scheduled to commence Orphan Works hearings the first week in March.

They hope to pass legislation before the end of the year. According to a source on the committee, this proposal is being fast-tracked because lawmakers think it has wide-spread support within the creative community. We need to disabuse them of this notion.

The spin that’s being put on this legislation is shrewd. Special interest groups have re-defined copyright users as “creators” of “transformative works.” They're trying to persuade lawmakers that these “creators” are being hampered because of obsolete protections on work which has “little or no commercial value.” Yet the omnibus measures proposed in this Report would affect any work - old or new —that’s been published without identifying information. This would apply disproportionately to illustrations and photographs. We need to make it clear to Congressmen that these interest groups do not speak for real creators and that our work has significant commercial value.

Orphan Works legislation would be retroactive: This means that all the work you’ve done during the last 28 years could fall into the Orphan Works category if it was ever published without “relevant information” on it, was improperly credited or had been re-published by others without credit. In other words, it would take only one copy of any picture you’ve ever done — published without “identifying information” on it - or with that information removed by others — to justify an infringer’s claim that he was unable to locate the author.

Disputes over infringement would have to be settled in court. (And remember, copyright law is a Federal law, which means Federal court.) The worst thing that could happen to an infringer (if found guilty) is that he would have to pay you what he would have paid you in the first place. For 28 years (since the 1976 Copyright Act went into effect), you’ve been told that your work was protected “from the moment you put pen to paper.” No more. And artists who for 28 years produced work with the confidence that it was protected will find that the promise has been repealed. In effect, you could now be penalized for having believed what the government told you for the last three decades. This is very bad legislation.

The plot in a nutshell. It’s not an accident that this is happening now. Free Culture advocates such as Creative Commons have been arguing that the US should lead the way in re-imposing copyright “formalities” such as marking and registration. This would aid the spread of “free culture” because most artists would fail to mark and register their work (or marks could be removed). This would make a vast number of illustrations and photographs available for anyone to use or for companies like Google to sell access to.

Unfortunately for the free culturists, the US can’t re-impose formalities without violating or withdrawing from the international Berne Convention, which forbids formalities. And if the US did opt out of Berne, our country would effectively become a copyright outlaw. That would hurt American trade.

So the Copyright Office has crafted their orphan works proposal as a “limitation on remedies.” This would not re-impose formalities. But it would remove or emasculate penalties for infringement, potentially in any case where an illustration or photograph was published without “relevant information” on the picture itself. In effect, this would force artists —as a hedge against infringement — to re-impose on themselves the “formalities” the government can’t. Any artist who didn’t mark his work would expose it to no-fault infringement - a very clever way to re-impose formalities without actually doing so.

Remember, this is all being done in the name of promoting creativity by artists. That’s why we, as artists, have to speak up. We have to say that the Free Culture movement and the creative wannabes do not represent the true creative community. We have to say that this legislation would do great harm to our ability to create and make a living from our work.

What you can do. In their effort to speed this legislation through Congress, the plan's shepherds are severely limiting testimony for and against it. That’s why your letters are important.

Write to the senators and congresspersons who will be voting on this legislation, and do it as soon as possible. Express yourselves directly and frankly. You don't have to write a complicated letter, but it's important that you make certain points:

-Make it clear that you’re an artist and that you believe your small business will be endangered by placing limitations on remedies for infringement.

-Make it clear that you will never have the resources to police infringement of your work - which could occur at any time anywhere in the world.

-Make it clear that your work could be orphaned by others, no matter how diligently you do the right things to protect it.

-Make it clear that your work has significant commercial value.

For artists, this legislation would be a major revision of copyright law. In effect, a repeal of the 1976 Act. The Orphan Works Report calls for a 10 year “sunset provision,” which means that the legislation will be subject to reevaluation in 10 years. But if your copyrights have been laundered into the public domain during that decade, they’ll be lost to you for good as surely as the income that will be lost with them.

We can’t wait until this law “sunsets” before having a chance to express ourselves on it. Please write as soon as you can.

— Brad Holland for the Board of the Illustrators' Partnership of America

This may be republished, posted or forwarded in its entirety to any interested party.

Call for Action: Prevent Orphan Works Amendment to U.S. Copyright Law

Tuesday, Victor Perlman, attorney for the American Society of Media Photographers went to Washington to register ASMP’s opposition to the recent Orphan Works Report.

Last week, Vic phoned us and asked if he could speak for IPA as well. We sent him the letter we submitted to the Copyright Office last year and said he could tell Senators and Congressman that it expressed the opposition of the 42 arts organizations in the U.S. and throughout the world, and the nearly 2,000 artists who signed it.

Orphan Works legislation is being championed by museums, libraries, archives, foundations and Free Culture advocates, and there is concerted pressure on Congress to write the recommendations into law before the end of this session.

This legislation jeopardizes visual artists’ copyrights and robs artists of income. We need to make sure that lawmakers hear from the people who will be hurt by these harmful changes to the 1976 Copyright Act. To do this effectively, all illustrators and photographers need to make their voices heard. ASMP has already asked their members and others to commence a letter writing campaign to lawmakers.

We urge all artists to do the same, and to act quickly to express your opposition to your Congressional representatives. We wouldn’t ask unless it was vital. This is a make or break moment for artists, creative authorship, and the exclusive rights guaranteed to artists under U.S. Copyright Law and the Berne Convention.

For maximum impact, we urge visual rightsholders to fax letters on your letterhead. E-mails don’t carry the same weight, and neither do form letters. We are providing a sample letter for you, but we recommend you modify it with your own points, or write your own letter. We are providing the complete list of those to contact at the bottom of this message. Or you may wish to use the excellent resource of tools to simplify faxing to legislators graciously provided by ASMP at http://asmp.org/news/spec2006/orphan_tools.php

— Brad Holland and Cynthia Turner
For the Board of the Illustrators' Partnership of America

This may be republished, posted or forwarded in its entirety to any interested party.

DRAFT LETTER
Re: Orphan Works Copyright Legislation

Dear (Senator or Representative) ____________________:

(Identify yourself and include a one or two sentence description of your specialty and/or affiliations) ____________________________________________________.

I’m writing to express my opposition to the conclusions expressed in the U.S. Copyright Office Orphan Works Report. The 1976 Copyright Act guarantees me as an artist the exclusive right to authorize or withhold reproduction of my work and to create derivative works. It guarantees this from the moment I fix the work in a tangible form, and it guarantees this without imposing formalities such as a copyright mark or registration. The Berne Convention for the Protection of Literary and Artistic Works forbids such formalities as a condition on my enjoyment and exercise of copyright. This is particularly important for visual artists because many works appear without credit lines or identifying information. The explosion of unauthorized posting on the internet has increased instances of unidentified work.

The Orphan Works provision constitutes a loophole that will jeopardize the copyrights of thousands of freelance artists such as me, and do so retroactively. Although the Orphan Works report states that it does not re-impose formalities, I fear that for all practical purposes the proposed amendment will have that effect.

All work created by all artists throughout the world, regardless of age, whether published or not, whether of U.S. origin or abroad, will be subject to orphan works claims.

The provision shifts the burden of diligence from the owner to the user. I see no practical way that I could monitor any potential infringement of my work in any publication or database anywhere within the reach of the internet. My creative work is one of the most personal forms of private property that I have because it wouldn’t exist without the specific expression that is the result of my outlook and experience. Nothing in the Orphan Works Report justifies the exploitation of my private property by others.

I’m also afraid the penalties provision is another glaring loophole for anyone who chooses to make payment for usage the option of last resort. Once a work has been published there is no certain way to establish a reasonable fee. Any user can offer any fee, and unless I’m agreeable to the offer I have no option but to file a prohibitively expensive lawsuit that would cost more than I could recover. I’m therefore afraid that this part of the Orphan Works provision would constitute a no-fault license to infringe.

Several times in the Orphan Works Report unvalidated assertions are made that orphan work has little or no commercial value. This is contrary to my entire professional experience. The work that I create constitutes a valuable inventory that I can license any time, now or in the future, as part of my day-to-day business. Nothing in the universal copyright conventions gives any user the right to devalue my inventory for their own gain.

I believe that the answer to those instances of users who wish to use genuine visual art orphan works be confined to the specific instances that have been identified, such as family photo restoration, genealogy research and historical archiving, and be handled with specific limited exemptions to the Copyright law, just as many other countries have done.

I ask you to reject any legislation that would further undermine copyright protection for artists.

Respectfully yours,
(your name)

Who to Fax
Before you start keying numbers, you might want to check ASMP’s tools for automating the faxing process. They can be found at http://www.asmp.org/news/spec2006/orphan_tools.php

There are a lot of people to contact. For those for whom this is an unreasonable burden, we recommend you send to at least these:

PRIORITY LIST

• Senator Orrin Hatch, Chairman
Senate Judiciary Subcommittee on Intellectual Property
Fax (202) 224-6331

• Senator Patrick Leahy, Ranking Member
Senate Judiciary Subcommittee on Intellectual Property
Fax (202) 224-3479

• Congressman Lamar Smith, Chairman
House Judiciary Subcommittee on the Courts, The Internet and Intellectual Property
Fax (202) 225-8628

• Congressman Howard Berman, Ranking Member
House Judiciary Subcommittee on the Courts, The Internet and Intellectual Property
Fax (202) 225-3196

• and to your Senator, listed here:
http://www.senate.gov/general/contact_information/senators_cfm.cfm

• and to your Representative
He or she can be found by entering your state and zip code on this page: http://www.house.gov/writerep


HERE'S THE COMPLETE LIST:
The Senate Judiciary Committee

Arlen Specter - Pennsylvania - Fax (202) 228-1229

Orrin G. Hatch - Utah - Fax (202) 224-6331

Patrick J. Leahy - Vermont - Fax (202) 224-3479

Edward M. Kennedy - Massachusetts - Fax (202) 224-2417

Jon Kyl - Arizon - Fax (202) 224-2207

Joseph R. Biden, Jr. - Delaware - Fax 202-224-0139

Mike DeWine - Ohio - Fax (202) 224-6519

Herbert Kohl - Wisconsin - Fax (202) 224-9787

Dianne Feinstein - California - Fax (202) 228-3954

Lindsey Graham - South Carolina - Fax (202) 224-3808

John Cornyn - Texas - Fax (972) 239-2110

Sam Brownback - Kansas - Fax (202) 228-1265

Richard J. Durbin - Illinois - Fax (202) 228-0400

Tom Coburn - Oklahoma - Fax 202-224-6008


The House Judiciary Committee

F. James Sensenbrenner - Wisconsin - Fax (262) 784-9437

Henry J. Hyde - Illinois - Fax (202) 225-1166

Lamar Smith - Texas - Fax 202-225-8628

Elton Gallegly - California - Fax (202) 225-1100

Bob Goodlatte - Virginia - Fax (202) 225-9681

William Jenkins - Tennessee - Fax (202) 225-5714

Chris Cannon - Utah - Fax (202) 225-5629

Spencer Bachus - Alabama - Fax 202 225-2082

Bob Inglis - South Carolina - Fax (202) 226-1177

Ric Keller - Florida - Fax (202) 225-0999

Darrell Issa - California - Fax (202) 225-3303

Mike Pence - Indiana - Fax (202) 225-3382

J. Randy Forbes - Virginia - Fax (202) 226-1170

Louie Gohmert - Texas - Fax (202) 225-5866

John Conyers, Jr - Michigan - Fax (202) 225-0072

Howard L. Berman - California - Fax (202) 225-3196

Rick Boucher - Virginia - Fax (202) 225-0442

Zoe Lofgren - California - Fax (202) 225-3336

Maxine Waters - California - Fax 202-225-7854

Marty Meehan - Massachusetts - Fax (202) 226-0771

Robert Wexler - Florida - Fax (202) 225-5974

Anthony Weiner - New York - Fax (718) 520-9010

Adam Schiff - California - Fax (202) 225-5828

Linda Sanchez - California - Fax (202) 226-1012

This e-mail may be forwarded and/or posted in its entirety to any interested parties.

Proposed U.S. Legislation Could Orphan Copyrights

The US Orphan Works Report: On January 23 the U.S. Copyright Office issued their Orphan Works Report, outlining a proposed amendment to the 1976 Copyright Act. It defines an “orphan work” as any work where the author is unidentifiable or unlocatable, and applies to both published and unpublished works, US and foreign, regardless of age. The legislation would be retroactive. http://www.copyright.gov/orphan/orphan-report-full.pdf

The proposal would not re-impose formalities, but would penalize artists who didn’t re-impose formalities on themselves. The strategy is to “limit remedies” for infringement in any case where an illustration or photograph was published without “relevant information” on the picture itself - or where relevant information has been removed:

“For authors and copyright owners, marking copies of their works with identifying information is likely the most significant step they can take to avoid the work falling into the orphan works category. This is particularly true for works of visual art, like photographs and illustrations, that otherwise do not contain text or other information that a user can rely on to help determine the identity of the copyright owner. Nothing in the Office’s recommendation would make such markings mandatory...Nevertheless, the presence and quality of the information on particular copies will be a highly relevant fact as to whether a reasonable search will find the copyright owner.” (p. 9, emphasis added)

The report does not define a “reasonable search,” but says (p. 98): “a very general standard...will have to be applied by users, copyright owners and ultimately the courts on a case-by-case basis...” There will be no statutory damages, court costs or attorneys’ fees available for artists whose work has been infringed:

“Our recommendation [limits] the possible monetary relief in these cases to only ‘reasonable compensation,’ which is intended to represent the amount the user would have paid to the owner had they engaged in negotiations before the infringing use commenced.” (p. 12)

By limiting remedies for infringement, the Copyright Office acknowledges that individual authors generally lack the resources to police unauthorized usage:

“While corporate copyright owners were generally in favor of a reasonable compensation approach, individual authors like photographers, illustrators and graphic artists noted that under current conditions, obtaining a lawyer to even file an infringement case is prohibitively expensive, so much so that only where statutory damages are available is it possible to file a case. If compensation were limited to only a reasonable royalty, they fear that it will likewise be practically impossible even to recover that compensation given the cost of litigation.” ( p. 117)

The Report expresses “sympathy” for this fact of life, but states that “[t]his problem . . . has existed for some time and goes beyond the orphan works situation, extending to all types of infringement of the works of individual authors . . . It is not, however, within the province of this study on orphan works.”(p.114, emphasis added)

By suggesting that artists may have to go to court to resolve even minor publication disputes, the Orphan Works Report raises a jurisdictional question that it doesn’t answer. US Copyright law is federal law and filing a federal lawsuit is prohibitively expensive. There are only 11 Federal Districts in the US and approximately 100 US District Courts. We’ve asked Copyright Office attorneys how artists scattered across the country can be forced to go to Federal Court to be paid minimum fees for unauthorized usage. Their answer was they weren’t sure, but are considering establishing a copyright small claims court. However, this still doesn’t resolve the jurisdictional issue, unless the government establishes a Federal small claims court in every city and town in the US to resolve an increased number of copyright disputes. This seems most unlikely.

Another problem with relying on small claims courts is that awards are limited to US $2,000, which would cap the "reasonable royalty" allowable for any, usage, regardless of commercial value and number of works used. Small claims judgments are also unenforceable. Also since an infringer will need only prove that he could not identify or find the artist of an unmarked image, the judge may be forced to uphold the majority of infringements, regardless of the effect it will have on the copyright holder.

The Orphan Works Report notes that many respondents to the Study proposed “registries or other databases of owner or user information” as a possible solution of tracking rightsholders, but the report states that the Copyright Office lacks the resources to create and administer them:

“[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, and organically become part of the reasonable search by users by creating incentives for authors and owners to ensure that their information is included in the relevant databases.” (p.106, emphasis added)

For the record, when Congress was drafting the 1976 Copyright Act, they considered and rejected Orphan Works legislation. They acknowledged that an “orphan works problem” existed, but concluded that it was outweighed by the need for copyright protection for authors:

“A point that has concerned some educational groups arose from the possibility that... a life-plus-50 year [copyright] term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...

“It is true that today’s ephemera represent tomorrow’s social history, and that works of scholarly value, which are now falling into the public domain after 29 years [the term of copyright prior to 1978], would be protected much longer under the [1976] bill. Balanced against this are the burdens and expenses of renewals, the near impossibility of distinguishing between types of works in fixing a statutory term, and the extremely strong case in favor of a life-plus-50 system. Moreover, it is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making “fair use” of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights. The advantages of a basic term of copyright enduring for the life of the author and for 50 years after the author’s death outweigh any possible disadvantages.” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) (emphasis added)

Congress is scheduled to commence Orphan Works hearings the first week in March. They hope to pass legislation before the end of the year. According to a source on the committee, this proposal is being fast-tracked because lawmakers think it has wide-spread support within the creative community. The Illustrators’ Partnership opposes this legislation outright and is working with other groups to mobilize opposition in the short time we have to do it.

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

This may be republished, posted or forwarded in its entirety to any interested party.

The Copy Left is Not Right

A new “rights movement” is taking shape around the issue of creators’ rights. In theory, its goal is to benefit the general public. But if successful, it will affect the careers and legacies of freelancers everywhere. And artists, writers and photographers who are already confused about how to protect their copyrights can now say hello to a new ride at the Funhouse.

The issue involves the length of copyright protections, and its advocates are a small group of attorneys, activists and legal scholars, known loosely as the “Copy Left.” Their legal argument is that prolonged ownership of intellectual property robs the public of “free” information to which the public is “entitled.” And they’ve set themselves the goal of rolling back or abolishing copyright protections. Their stated mission is to serve the public interest by speeding the passage of copyrights from private hands into the public domain. Some portray themselves as visionaries trying to restore the “Jeffersonian” ideal of a “free society” by making all culture accessible to consumers for “fair use.” Others might say they’re simply trying to make the public a generous gift of other peoples’ work.

On the surface, the rhetorical target of these activists is corporate copyright holders. But in their effort to stigmatize Big Media as hoarders of information, Copy Leftists fail to distinguish between copyrights held by corporations and those held by individuals. This failure has consequences because corporations don’t create; individuals do. And in their drive to enact laws to restrain Big Business, they could well damage freelancers instead.

The current situation has its roots in the 1976 revision of the U.S. Copyright Act, a law that went into effect in 1978. Before that time, freelance artists, writers and photographers in the U.S. generally didn’t own the secondary rights to the work they did for clients and publishers.

If an artist did a painting for a large national magazine, for example, the publisher could claim all rights to it, just as major corporations now do for a logo they commission from a graphic designer. The 1976 Copyright Act revised all that and gave secondary rights to the freelance artist. This set up the working environment American creators have known for the last quarter century.

Over the years, publishers and others in the U.S. have lobbied for increased length of protection for the copyrights they held. Currently, an American copyright protects the work of a copyright holder for the lifetime of the creator plus 70 years. Twenty years of that term were added within the last decade by the “Sonny Bono Copyright Term Extension Act.” Some say this legislation, sponsored by the former Pop Star and Congressman, was a favor done for the Disney corporation, which feared losing their early copyrights on Mickey Mouse material. Others point out that the Bono Act merely brought the United States into closer compliance with international copyright law, a necessary step if the U.S. wishes to maintain reciprocal overseas trade agreements.

But the Internet has spawned opponents to these long-standing copyright protections. Upstart commercial interests, backed by the Copy Left, contend that copyright is actually a “black hole” which keeps content in the hands of corporations, inhibits free speech and overreaches the intent of the Constitution’s framers. They point out that American copyright was originally intended to protect only authors of “maps, charts and books,” and they seek to overhaul the entire U.S. copyright system to conform to their collectivist’s reading of Original Intent.

One of the leaders of this movement is legal scholar Lawrence Lessig, author of the newly published “Free Culture: How Big Business Uses Technology and the Law to Lock Down Culture and Control Creativity” (The Penguin Press, 2004). Lessig has previously proposed reducing copyright to a period of five years, with 15 increasingly expensive renewal options.

The purpose would be to make the downstream paperwork of copyright holders so onerous that copyrights would fall through the cracks more often and enter the public domain more quickly. But this solution chases the problem without catching it. Anyone familiar with the workings of Big Business will understand that corporate copyright holders faced with increased paperwork and administrative costs would simply staff up to handle the overload, then pass the added cost along to the public. The people more likely to be swamped and defeated by multiple copyright filings and incessant, staggered renewals would be the overwhelmed, deadline-ridden freelancer. In short, the goal of checking corporate overreach by making copyrights harder to maintain would be very likely to burden the wrong parties.

There is some logic in questioning how far corporations should be allowed to go in conglomerating intellectual property. Corporations acquire copyrights in one of two ways: from the work of employees whose creative product is considered the company’s property; or from freelancers who deed their copyrights to the corporation - often as a forced condition of accepting assignments. Once acquired, corporate copyrights can, in theory, be retained as long as rolling copyright extensions can be lobbied into law. Here, the case against Big Media may be on target. But since the argument has no meaning when applied to freelancers, the true believers of the movement have borrowed the logic of Deconstructionism to simply remove creators from the equation.

Following Postmodern theory, Copy Leftists argue that “the romantic myth of authorship” is an artifact of less sophisticated times. To Deconstructionists, artists are nothing more than manifestations of the societies they live in. And since all artists are influenced by the work of previous artists, they say, each individual work of art owes a debt to the past that must be repaid to the public domain — in their minds, sooner better than later. The Copy Left may be breaking new ground here by trying to base statutory law on literary theory, but we don’t need to argue the merits of Postmodern criticism to see the flaws in the argument. Compare copyrights to home ownership and a stronger case prevails.

The principles of building construction are a collective body of wisdom accumulated over the ages. This information is available to everyone, as are building supplies to anyone who can afford them. Yet, the house you build or buy is yours and your heirs. Your debt to the fair use of public information does not obligate you to inhabit your home under a limited government grant, then surrender it back to the public at the end of that term. Let the Copy Left explain why individual copyrights should be treated any differently.

Most freelance artists and writers have no other source of income but their creative work. The accumulated value of that work is no different than the value that accrues to your home; and the copyright that protects it no more robs the public of an "entitlement" than does the ordinary ownership of private property. Indeed, without the incentives guaranteed to individual creators under copyright law, the tradition of independence in the popular arts would be at risk - and with it, the variety of independent viewpoints that freelancers bring to public life. That would rob the public in a noticeable way.

For decades, freelance artists and photographers have given shape to the content of popular culture. Within the last two decades their ability to earn a living has come under assault: from publishers who demand they surrender copyrights in return for assignments, from corporate interests who wish to sell access to “free culture,” from cutthroat competition with discount "image providers," and now from legal "visionaries" who wish to repeal or emasculate copyright.

The case for abolishing copyright can be likened to a scheme for the redistribution of income. In theory it sounds public-spirited. In reality it deadens motivation. Protecting a creator's individual copyrights will cost the public nothing, but it will insure the continued flow of creative work from which the public will ultimately benefit.

This article appears in the Fall/Winter 2004/05 issue of ALT Pick
Magazine. It is being shipped currently.