If you are a working artist, author, or musician, you owe it to yourself to sign this petition to the President and Vice President.
The letter you will be adding your name to:
We, the undersigned, are just a few of the more than 11 million artists living, working, and creating across the United States. Our work brings significant cultural and economic value to our society – and contributes $1.52 trillion to the nation’s GDP. Yet that value is being disregarded as our rights and incentives to create are increasingly under threat.
Hear us as we speak with one voice about the importance of creators’ rights.
We are the essence of America. Since the founding of our country, our work has provided light in the darkness of conflict, humor in the depths of sadness, beauty in the face of ugliness, and reason in the dysfunction of division.
We serve as the foundation of our communities; you find us in schools, performance halls, libraries, museums, community centers, and movie houses. We enrich our culture with a wide range of creative expression, including music, film, software, video games, writing, photography, graphics, and other visual arts.
We contribute in some way to every single industry in the country. Many of us are self-employed. All of us work hard and pay taxes.
Yet, we are under assault. Our rights to control the distribution, use, and reproduction of our works in our vibrant digital age are dismissed by many who do not understand the value we bring to society. They tell us to work harder, create better, and give our works away. Some think that they should control our works and that they should be able to appropriate, perform, and copy them how they please, without our consent, benefit, or participation.
Our freedom as creators lies in the Constitutional rights we cherish, rights given to us to promote our culture. Without these rights, our ability to pursue our creative dreams and to meet the high expectations of those who benefit from our creative works is significantly diminished. As a result, all Americans will suffer.
Mr. President and Vice President, hear our call. We know you understand the value our creative contributions bring to our society and economy, and we know you can encourage our citizens to respect our rights. Please pursue policies supportive of the rights of artists and the encouragement of our creative efforts. Without the proper respect for our rights and works today, it will become even more difficult for us to create in the future.
Posted by Todd in Art!, Blog Home, Orphaned Works at 2:12 PM PST
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FROM THE ILLUSTRATORS’ PARTNERSHIP
Orphan Works and the Google Book Settlement / Part III
10.2.09
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.
Our comments have been excerpted from various articles posted in 2008 on the IPA Orphan Works blog.
- Brad Holland and Cynthia Turner for the Board of the Illustrators’ Partnership
Over 85 organizations opposed the last Orphan Works bills, representing over half a million creators. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.
______________________________________________________________
For news and information, and an archive of these messages:
Illustrators’ Partnership Orphan Works Blog
Posted by Todd in Blog Home, Orphaned Works at 1:46 PM PDT
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FROM THE ILLUSTRATORS’ PARTNERSHIP
Orphan Works and the Google Book Settlement / Part II
9.29.09
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.
- Brad Holland and Cynthia Turner for the Board of the Illustrators’ Partnership
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For news and information, and an archive of these messages:
Illustrators’ Partnership Orphan Works Blog
Posted by Todd in Blog Home, Orphaned Works at 10:11 PM PDT
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Orphan Works: Back Again
FROM THE ILLUSTRATORS’ PARTNERSHIP
6.17.09
In Orphan Works Land, no news has been good news, but that’s about to change:
http://www.ip-watch.org/weblog/2009/06/11/copyright-holders-acknowledge-losing-battle-for-public-consciousness-at-world-copyright-summit/
US Copyright Register Marybeth Peters told Intellectual Property Watch that orphan works legislation is expected to be introduced within the next 10 days. It is her understanding there may still be some issues in the House version to be resolved, and there are some stakeholders – such as illustrators and other artists – “who are probably going to lobby pretty hard against it.”
Peters said this issue is important to her, and the fact it came so close to passing last year is almost bittersweet. “What I hope it isn’t … is it’s one magic moment you get” to finally get it passed, then it doesn’t happen, she said.
We don’t mean to disparage the Register’s comments. She’s had a long and distinguished career at the Copyright Office. But her statement deserves a reality check. Illustrators are not opposed to an orphan works bill. We’re opposed to this bill.
We’re opposed because its scope far exceeds the needs of responsible orphan works legislation.
Moreover, illustrators and artists are not the only stakeholders who oppose it. At last count, more than 83 creators organizations are on record against it, representing artists, photographers, writers, songwriters, musicians and countless small businesses.
Last year, we proposed amendments to the Orphan Works Act that would have made it a true orphan works bill. The amendments were drafted by the attorney who was chief legal counsel to the House Judiciary Committee in drafting the 1976 Copyright Act. The amendments were co-sponsored by the Artists Rights Society and the Advertising Photographers of America. They can be found here: http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html
On July 11, 2008, we submitted those amendments to both the House and Senate Judiciary Committees. In our preamble we wrote this:
As rights holders, we can summarize our hopes for the Orphan Works Act simply: to see that it becomes a true orphan works bill, with no unnecessary spillover effect to damage the everyday commercial activities of working artists. We’d be happy to work with Congress to accomplish this. No legislation regarding the use of private property should be considered without the active participation of those whose property is at stake.
Last year more than 180,000 letters were sent to lawmakers from our Capwiz site. These letters did not come from obstructionists. They came from citizens whose property is at stake. They may lack the resources of big Internet companies and the access of high powered lobbyists, but last year they spoke. They asked only one thing: that Congress respect their personal property rights and amend this bill to make it nothing more than what its sponsors say they want it to be – a bill that would affect only true orphaned work.
We urge this Congress to listen.
- Brad Holland and Cynthia Turner for the Board of the Illustrators’ Partnership
Posted by Todd in Art!, Blog Home, Orphaned Works at 7:56 PM PDT
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FROM THE ILLUSTRATORS’ PARTNERSHIP
Orphan Works: A Lame Duck Countdown
Part V. Through the Looking Glass
12.08.08
Orphan Works advocates defend their proposals by saying they’re necessary to put users in touch with copyright owners. They say this isn’t happening now because of a market failure in commercial markets.
Speaking at a Congressional Seminar March 31, 2006, Copyright Office attorney Jule Sigall explained why they believed artists needed Congress to “push” them to register their work with privately owned copyright registries (page 23 of the transcript):
“[A]t this stage, in respect to the legislation…the real question we need to ask and answer is, what kinds of provisions put the right pressure [on photographers and illustrators] to get to that point? Who needs to be pushed there? I mean… I use this line a lot, photographers and illustrators like to say, ‘We haven’t collectivized…’ This is a problem, generally, for their marketplace. It’s hard to have a marketplace where buyers can’t find sellers.” (Emphasis added) http://www.pff.org/events/pastevents/033106orphanworks.asp
Nothing expresses the looking glass logic of the Orphan Works bill better than this statement by the “principal author” of the Copyright Office report that an amendment legalizing the infringement of millions of commercial copyrights is necessary in order for buyers to find sellers.
Read the rest of this entry »
Posted by Todd in Orphaned Works at 1:07 PM PST
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FROM THE ILLUSTRATORS’ PARTNERSHIP
Orphan Works: A Lame Duck Countdown:
Part II. The Legislative Blueprint
12.02.08
The “legislative blueprint” for the Orphan Works Act was not drafted by the Copyright Office after their year-long Orphan Works study, but before it, by law students at the Glushko-Samuelson Intellectual Property Law Clinic.
Read the rest of this entry »
Posted by Todd in Orphaned Works at 1:28 PM PST
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These are bullet points worth using in any letter to your representative. It certainly looks like an underhanded attempt to wrest control of a valuable commodity — your copyright and mine — or make us pay to keep it. Please spread word far and wide, not just to artists, but to writers and photographers as well:
FROM THE ILLUSTRATORS’ PARTNERSHIP
Orphan Works: Lame Duck Countdown
12.01.08
Part I. Little Known Facts
Read the rest of this entry »
Posted by Todd in Orphaned Works at 12:49 PM PST
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There is, apparently, a Facebook page to link to, use, subscribe to as a fan, whatever:
Plese write your representatives, blog it, Facebook it, do whatever you can. The livelihoods of your favorite artists are in jeopardy.
Much thanks,
Todd
Posted by Todd in Orphaned Works at 11:51 PM PST
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More Orphaned Works stuff. This comes via email from An Artists’ Representative:
The Graphic Artists Guild has brought a lawsuit for one million dollars against the IPA and to individual
members Brad Holland, Cynthia Turner, Ken Dubrowski, Terry Brown, and their attorney Bruce Lehman. They* are circling a petition for the GAG to drop the lawsuit, and I offered to help by passing the document on to our group. Please read the attached letter and if you agree, sign and email back to stopsuitpetition(at)me.com.
It’s no secret that GAG and IPA have disagreed on the issues over the years, most notably with GAG’s support of the Orphan Works bill, however bringing a lawsuit against IPA, in effect punishing them for their criticism of the organization’s failings, is counter-productive to the interests of the artists that they are supposed to represent.
If you have any questions about the petition, you can contact IPA members and former GAG chapter presidents Daniel Vasconcellos dan(at)vasky.com or Richard Goldberg rag(at)ragmedia.com.
Download the letter here.
*Post Script: For the record, it should be noted that one of the folks being sued by the GAG wrote to me: “Please allow me to clarify that the 5 of us being sued by GAG are not the authors or circulators of the petition. We are, however, deeply grateful to those who have initiated it and to all who are supporting it.”
Posted by Todd in Orphaned Works at 5:22 PM PST
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Gigi Sohn is the president of Public Knowledge. What her stake in this is I can only guess, but she’s a “Communications Attorney,” so no doubt somehow connected to Google or another like Google who want to parade anything they find for profit, while making it possible for outright thieves to run away with my livelihood.
There are so many ways this thing is bad news. But the illustrator’s Partnership explains it better than I can:
Read the rest of this entry »
Posted by Todd in Orphaned Works at 12:27 PM PDT
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