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

[download the pdf]

October 1, 2015

Maria Pallante

Register of Copyrights

U.S. Copyright Office

101 Independence Ave., S.E.

Washington, DC 20559-6000 

RE: Reply Comment, Notice of Inquiry, U.S. Copyright Office, Library of Congress: Copyright Protection for Certain Visual Works  (Docket No. 2015-01)

Dear Ms. Pallante and the Copyright Office Staff:

The Copyright Office’s 2015 Report on Orphan Works and Mass Digitization, submitted to Congress in June contains a misleading comment about previous legislation and a misstatement of fact about visual arts registries that we believe should be clarified to lawmakers; both could have a direct bearing on any potential copyright legislation Congress may draft. We also wish to comment on a judgment made by the Copyright Office that demonstrates the kind of unintended consequence that can arise when outside interests try to make large decisions better left to the marketplace. And finally we intend to expand on our initial comments regarding the relevance of the Constitution’s Ex Post Facto Clause to the proposed orphan works legislation.

The Shawn Bentley Act: Unanimous Consent in Name Only

The Copyright Office states (page 12) that the Senate passed the Shawn Bentley Act by unanimous consent. In fact, it was passed by a legislative maneuver called hotlining that effectively bypassed Senate consideration. According to Roll Call, Sept 17, 2007:

“The practice [of hotlining] has led to complaints from Members and watchdog groups alike 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.” [1]

The Shawn Bentley Act was hotlined twice during the summer of 2008, but both times artists contacted Senators and holds were put on the legislation. On September 26, 2008, the bill was hotlined again, this time during early evening hours the night of the first Obama/McCain Presidential debate. With most Senate offices closed, even the legislative aides we were able to reach by blackberry said they lacked the time to read the hotlined bill, and so it was passed by what Senate protocols are allowed to call “unanimous consent.” [2]

Unanimous consent, however, in name only. 

On December 5, 2008, we received an email from Senator Charles Schumer, whose empty office we had phoned the night of the hotlining. In the letter, the Senator assured us of his conviction “that protecting intellectual property is one of the best ways to promote innovation,” and that “it is vital that we continue to protect both incentives for innovation and the means of livelihood of millions of New York artists.” Then he concluded:

“The Orphan Works Act is currently being carefully considered by the Senate. 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 New York artist community to ensure that any bill that is ultimately passed appropriately balances these competing concerns.” (Emphasis added.) [3]

Apparently the Senator was unaware that the Shawn Bentley Act had passed the Senate more than two months earlier, by “unanimous consent” including – allegedly – his. We doubt that he was the only lawmaker left in the dark by this controversial procedure. 

The Senate’s success in passing the bill in this fashion apparently inspired advocates of the House bill to lobby for similar tactics to be used there.  On October 6, 2008, Gigi Sohn, President of Public Knowledge, wrote this on her blog:

“The best option [for passing the House bill] was to put it on the ‘suspension calendar,’ which is the place largely non-controversial legislation gets put so that it will get passed quickly. There can be no amendments to bills placed on the suspension calendar.” [4]

Until the very last minute, Sohn acknowledged, she and other lobbyists “were on the phone imploring the [House leadership] to move the bill” in this surreptitious fashion. Yet in the end, “it was to no avail.” On October 3, 2008, with lawmakers struggling to package the 700 billion dollar TARP bailout, Congress adjourned without passing the Orphan Works Act.

Elsewhere, we have argued that an author’s exclusive right of copyright is a Constitutional provision, and as such, cannot be abridged without a Constitutional amendment. Congress, of course, cannot abridge a Constitutional right by means of statute law. But to try to do it by legislative maneuver should be unthinkable.

May we ask, respectfully, that the Copyright Office issue an official clarification to all members of Congress involved with drafting new copyright legislation, noting the unique circumstances of the Shawn Bentley Act’s passage. Otherwise lawmakers might be misled into believing that it was a non-controversial bit of legislation, duly considered by the Senate, voted on by all members with unanimous approval, and therefore pre-approved for inclusion in whatever copyright legislation they may be drafting.

Credible Visual Arts Registries: Still Years Off

There is another comment in the 2015 Report that we believe requires clarification. According to the Copyright Office, “developments since 2008 have helped to reduce the obstacles facing visual artists in an orphan works context – most notably the development of credible visual art registries…Currently, several visual arts organizations support the non-profit PLUS Registry as an important way to enable diligent searches for owners of orphan works. PLUS functions as a ‘hub’ connecting registries in eighty-eight countries, and provides both literal and image-based searches.” [5] Working artists, however, know that there is no such registry. Here are just some of the many comments submitted to the Notice of Inquiry:

Brad Holland: “Stated this way, it might suggest to Congress that such a registry actually exists, that it is stocked with artists’ images, and is ready and able to start licensing those images to the world. If this is what you’ve been told, I’m afraid you have been misinformed. There is no such thing.

“I am one of the most prolific published artists of the last 50 years, with multiple awards, a client list that includes nearly every major publication in the country and a place in the Illustrators Hall of Fame. If there were such a registry I would know about it, and if I thought it would be beneficial to my interests, my work would be in it. But I know of no such registry and neither do any of my colleagues.”

Katherine Guevara-Birmelin:  “According to the Copyright Office’s report in 2015, there already exists a credible visual arts registry which functions as a hub, connecting registries in 88 countries, providing both literal and image based-searches. My understanding of this phrasing is that such a registry actually exists, and therefore if I am reading it in this manner, so is everyone else, including those holding power in Congress. It would be my experience in networking with other artists in my field, that the above is false. No such registry exists.”

Scott Stanton: “The claim that there is already a viable visual arts registry that would benefit artists and the reprographic and secondary rights licensing agency that pays artists royalties are both incorrect. Currently this is NO viable visual arts registry, only stock houses which in my opinion do NOT best represent artists’ interests.”

Cynthia Yolland: “There is no national registry to date. The ‘registries’ that currently exist are pseudo-registries and not economically viable to artist[s], in fact in many instances they give no remuneration to the artists involved and use images without credit or value.”

Taina Litwak: “There are no registries in any overseas markets that behave in the proposed fashion as would be required to make a viable market for artist[s] to thrive.”

Angela Treat Lyon: “Even the PLUS registry under development appears to be utilizing metadata and watermarks - both identifiers that are useless currently to protect ownership information.”

Dena Matthews:  “I am also troubled that the Copyright Office makes claims in it’s report that a viable search for a suspected orphan work of visual art could be conducted on the Copyright Office’s website or on the PLUS registry, when in fact, that is impossible. As you know, The Copyright Office’s registry is not searchable by image; one must have the Title, Name, Keyword, Registration Number, Document Number or Command Keyword of a registered work to find it there and the search results do not display an image, only text based-information. The PLUS Registry is in Beta Phase 1 and one can only search[ed] by PLUS ID or Name. We are suspicious of the PLUS Registry because, while not even a litigant in the case, they have received from Google a confidential amount of settlement money that should have gone to infringed artists and rights holders.”

We are, of course, well aware that there are many “wannabe registries, beta sites, etc.” such as PLUS.  In fact the Illustrators Partnership was one of the first visual arts groups to support PLUS. We did so, however, on the assurance that it would be a voluntary registry only and would not, under any circumstances, be used to justify passage of orphan works legislation. 

PLUS has never been open to visual artists to register their works. PLUS is still not open for registration as of this writing. And even if it were, it would take at least a decade or longer for artists to load up their works – if they could afford to. Artists know all this, as the comments we’ve quoted above – and many more – demonstrate.

As a result, we again respectfully request that the Copyright Office officially inform members of Congress that contrary to misinformation given to the Copyright Office, no credible visual arts registry currently exists that is even remotely populated with enough images to make a search of that registry a viable search. Furthermore, lawmakers should be told that in the opinion of those best qualified to know – working artists – no such registry can possibly be viable for the foreseeable future. Or, it may never be viable at all.

Useful Articles and Unintended Consequences

On page 54 of its 2015 Report, the Copyright Office recommends that art on useful articles be exempted from orphan works legislation, but that all other forms of art should be subjected to it.

“The Copyright Office recommends that future orphan works legislation apply to all types of uses and all types of users, noncommercial and commercial, with the single exception of fixations of works of visual art in or on commercially available useful articles.” (Italics added.)  

The Office goes on to defend this “single exception.” But with all due respect, how can it be defended? By what possible standard is a drawing on a mug or a t-shirt more valuable, to either the creator, his clients or to the public, than a book or magazine illustration, a political cartoon, a medical or scientific illustration, a mural in the Smithsonian Air and Space Museum? Who in government believes themselves qualified to make such a sweeping judgment on the relative value of such works? And on what possible grounds can such a judgment be made? 

Let’s take an example of what could happen if art on useful articles were to continue to receive the full protection of copyright law, while all other art becomes subject to orphan works infringement: 

A clothing manufacturer infringes an unregistered magazine illustration orphaned by the law and places the art on a cheap line of t-shirts. Now, thanks to orphan works legislation, the creator of the original drawing will have lost the exclusive right to his own creation while the infringer will have acquired it. This would be not only an unjust reversal of the principle of copyright, it would defy any rational definition of private property rights.

We assume that such a situation would be the unintended consequence of a governmental  decision. Yet it highlights the problem of trying to socially engineer details of a multi-billion dollar cottage industry.

At the 2014 Roundtable we tried to make the point that no person or group of persons can ever know enough about other people's business affairs to make decisions better left to those whose interests are at stake:

“Because there are so many lawyers involved in this, we’re talking about [copyright law] as if it’s some arcane branch of law. It’s not. What you’re talking about is prescribing business models for people in businesses in which frankly, most of you don’t know enough [about our businesses] to be creating business models…The marketplace will create business models. It can move faster than Congress. It can move faster then the Copyright Office, faster than the lobbyists and legal scholars. If an artist comes up with a better means of being discovered, other artists will find out about it and will copy the same technique. Leave this to the marketplace. That’s the best laboratory for creating business models.” [6]

In the famous economic fable “I, Pencil,” Leonard Reed showed that no individual or special group possesses sufficient “know-how” to “master-mind” the “complex combination” of creative and economic decisions that go into making something even as simple as a common lead pencil, let alone more complicated enterprises.

“The lesson I have to teach is this [he concluded]: Leave all creative energies uninhibited. Merely organize society to act in harmony with this lesson. Let society’s legal apparatus remove all obstacles the best it can. Permit these creative know-hows freely to flow. Have faith that free men and women will respond to the Invisible Hand. This faith will be confirmed. I, Pencil, seemingly simple though I am, offer the miracle of my creation as testimony that this is a practical faith, as practical as the sun, the rain, a cedar tree, the good earth.” [7]

Artists, for whom common lead pencils are still a principle means of expression, would ask for nothing more or less than this from our government.

The Ex Post Facto Factor

The Copyright Office says that for purposes of orphan works infringement, “there should be no distinction as to whether a work is currently being exploited [by the author], or whether it was created decades ago.” [8] However, we’ve already noted in our initial comments that the distinction does matter, and matters greatly to artists who depend on licensing their work – past and present – to make a living. Moreover, we noted that “Article 1, Section 9 of the Constitution states that no ‘ex post facto Law shall be passed’ by Congress. Therefore any orphan works legislation that permits the infringement of work created since 1978 would seem to be abridging yet another Constitutional right.” [9]

We’re well aware that since the drafting of the Constitution, courts have generally held the Ex Post Facto Clause to apply only to criminal cases. But according to The Heritage Guide to the Constitution, “opposition to ex post facto laws was a bedrock principle among the Framers. In The Federalist No. 78, Alexander Hamilton noted that ‘the subjecting of men to punishment for things which, when they were done, were breaches of no law’ is among ‘the favorite and most formidable instruments of tyranny.’” And in an 1813 letter to Isaac McPherson, Thomas Jefferson noted “that ex post facto laws are against natural right.” [10]

“In Philadelphia, the Framers debated the issue vigorously. Some thought an explicit ban on ex post facto laws an absolute necessity,” while others had differing opinions about the effectiveness of a ban. The current holding regarding the scope of the Ex Post Facto Clause derives from “one of [the Supreme Court’s] earliest constitutional decisions, Calder v. Bull, decided in 1798.” In it, Judge Samuel Chase defined ex post facto laws as pertaining to criminal judgments and according to The Heritage Guide, based his decision on the fact that, “had the ex post facto law clauses barred all retroactive civil laws, the prohibition on the impairment of contracts by states (Article I, Section 10, Clause 1) and on uncompensated takings by the federal government (the Fifth Amendment’s Takings Clause) would have been unnecessary.” [11]

Ever since, however, some have argued that Judge Chase’s reasoning meant that the true scope of the Ex Post Facto Clause had never been “squarely presented.”  

“[A] few commentators and two Justices, William Johnson in Satterlee v. Matthewson (1829) and Clarence Thomas in Eastern Enterprises v. Apfel (1998), have voiced doubt over the accepted rule that the Ex Post Facto Clause applies only to criminal legislation. In Apfel, citing Justice Joseph Story, Thomas contended that the Ex Post Facto Clause, even more clearly than the Takings Clause, reflects the principle that retrospective laws are ‘generally unjust.’ He [Judge Thomas] continued:

“‘Since Calder v. Bull,...this Court has considered the Ex Post Facto Clause to apply only in the criminal context. I have never been convinced of the soundness of this limitation, which in Calder was principally justified because a contrary interpretation would render the Takings Clause unnecessary....In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause. They do so effectively where personal liberty is at issue. But the clause is of little use to those who are aggrieved by most forms of retroactive civil legislation, which frequently affect property rights of one form or another.’” (Emphasis added.) [12]

Orphan Works legislation, as we have repeatedly pointed out, would affect property rights. It would affect the most personal form of private property that exists: the work that citizens create themselves, the work we use to make a living, the art we create to express our short time on Earth. Orphan Works legislation would affect any form of creative expression – from professional artwork to family photos, home videos, songs and lyrics – and anything that anyone ever places on the Internet. 

Artists by the thousands have already commented on the damage this legislation would do to their lives and careers. But to orphan copyrighted work retroactively would open new doors for financial and personal abuse. We have already noted that disgruntled clients could easily use the law as an excuse to sue artists for failing to register work during the four decades that registration was not required. And respondents to the Notice of Inquiry have cited other concerns: “Does the US Copyright Office plan to pay back all the registration fees (plus interest) to those who, like me, registered diligently over decades?” “It would be impossible for me to furnish deposit data and register all of my work created since 1975.” “I am nonplussed that the US Copyright Office would wish to invalidate copyright registration certificates I have filed for over 30 years by its own Orphan Works policy.” [13]

Would this not be an “appropriate case” then to reconsider the wisdom, not to mention the fairness, of passing legislation that would reach back to 1978 and effectively penalize artists and citizens alike for failing to register work that existing law did not then require them to register? 

In Federalist Number 44, [14]James Madison expressed concerns many of us would still agree with:

 “Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.” 

We thank the Copyright Office for the opportunity to offer these comments.

Respectfully submitted on behalf of my colleagues,

Brad Holland

Footnotes

---

[1] http://www.rollcall.com/issues/53_27/-20011-1.html

[2] http://ipaorphanworks.blogspot.com/2008/09/orphan-works-devils-own-day.html

[3] Email from Senator Charles Schumer to Brad Holland, December 5, 2008. See Appendix.

[4] https://www.publicknowledge.org/news-blog/blogs/orphan-works-bill-wait-til-next-year

[5] 2015 Report on Orphan Works and Mass Digitization, p. 52. http://copyright.gov/orphan/reports/orphan-works2015.pdf

[6] Brad Holland Roundtable Transcripts March 10, 2014, Session 1, pp. 80-82. http://copyright.gov/orphan/transcript/0310LOC.pdf

[7] “I, Pencil” by Leonard E. Reed, From Essays on Liberty, Volume VI, originally published in the December 1958 issue of The Freeman. http://www.econlib.org/library/Essays/rdPncl1.html

[8] 2015 Report on Orphan Works and Mass Digitization, p.51. http://copyright.gov/orphan/reports/orphan-works2015.pdf

[9] Comments of the Illustrators Partnership to Notice of Inquiry, Copyright Protection for    Certain Visual Works (Docket No. 2015-01), July 17, 2015.

[10]  The Heritage Guide to the Constitution, “Ex Post Facto, Article 1, Section 9,

Clause 3.”http://www.heritage.org/constitution/#!/articles/1/essays/63/ex-post-facto

[11]  Ibid.

[12]  Ibid.

[13] Comments of Teri McDermott, McDermott Medical Illustration to Notice of Inquiry, Copyright Protection for Certain Visual Works (Docket No. 2015-01), July 14, 2015.

[14]  The Federalist Papers No. 44.  http://usgovinfo.about.com/library/fed/blfed44.htm

 

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

[download the pdf]

July 17, 2015

Maria Pallante

Register of Copyrights

U.S. Copyright Office

101 Independence Ave. S.E.

Washington, DC 20559-6000 

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

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

Dear Ms. Pallante and the Copyright Office Staff:

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

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

Because Article 1, Section 8 of the Constitution grants authors the exclusive rights to their work, it is our understanding that those rights cannot be abridged without a constitutional amendment. While we’re sure that the orphan works proposals the Copyright Office has recommended to Congress are well-meaning, in the rough and tumble business world where we work, they would effectively abridge those rights. That’s because no author (or citizen, for that matter) could ever again enjoy the exclusive right to any work he or she creates if any other US citizen anywhere is allowed to exploit those same works at any time, for any reason (except fair use), without the authors’ knowledge or consent. The orphan works proposals under consideration would redefine millions of copyrighted works as orphans on the premise that some might be. Yet difficulty on the part of some user to find some author should be insufficient grounds for abridging the Constitutional rights of any US citizen.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Respectfully submitted,

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

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

Remedies for Copyright Small Claims January 17, 2012: 

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

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

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

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

Footnotes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are the Basic Facts

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

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

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

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

It would "orphan" unregistered work.

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

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

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

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

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

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

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

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

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

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

In your letter to the Copyright Office: 

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

So when writing, please remember:

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

• Keep it professional and respectful.

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

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

• Indicate the field(s) you work in.

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

• Our copyrights are the products we license.

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

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

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

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

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

If you are NOT a professional artist:

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

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

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

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


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

Remedies for Small Copyright Claims
January 17, 2012

Orphan Works and Mass Digitization
Initial Comments February 3, 2013

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

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