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.

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.

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For news and information, and an archive of these messages:
Illustrators’ Partnership Orphan Works Blog

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

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

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.

For the record, there is no evidence in the Copyright Office report that art directors and commercial clients are having any difficulty finding the contributors they want to work with. No evidence whatsoever! Indeed, even a cursory glance at our field refutes that conclusion:

Consider magazines such as Vanity Fair, the New Yorker, Time or Vogue. All of them and countless others are filled from cover to cover with photographs and art – as are newspapers, trade publications, medical journals, ads, annual reports, posters, brochures, catalogues, postcards greeting cards and more. How can anyone be surrounded by this sea of images and seriously argue that in the visual arts “sector,” “buyers can’t find sellers”?

The Copyright Office “evidence” for their conclusion of market failure amounts to no more than 215 relevant letters submitted to their study on the specific subject of orphaned work. Since they didn’t study the workings of commercial markets, there cannot possibly be any valid grounds for deducing a market failure in those markets. You can’t study apples and draw conclusions about oranges.

Orphan Works “For the Sake of Ease”

However unfounded, this Copyright Office factoid of “market failure” is now an orphan works fact to lawmakers. When Chairman Berman of the House IP Subcommittee held the sole public hearing (I hour 27 minutes) on this bill, March 13, 2008, he acknowledged in his opening statement that it was not a true orphan works bill. Yet he insisted it was necessary to correct a “market failure”:

“[W]e should correct a misnomer. The works we’re talking about are not orphans…The more accurate description of the situation is probably an unlocatable copyright owner…this situation better describes the orphan works construct, which is to correct the market failure when a potential user can’t find the copyright owner. But for the sake of ease we’ll keep talking about them as if they’re orphans.”
http://www.copyright.gov/video/testimony-3-13-08.html

But to redefine an orphaned work as “a work by an unlocatable author” is to radically re-define the ownership of private property. Since everybody will be hard for somebody to find, this bill would permit any person to infringe any work by any author at any time for any reason – no matter how commercial or distasteful – so long as the infringer found the author sufficiently hard to find. And this would create 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.

We may presume that the bill’s backers don’t want to be seen as trying to strip citizens of their intellectual property rights without due process. So instead they now argue that they’re only trying to help artists, who in their fecklessness, oppose the bill because we don’t want to be helped.

The Myth of the Feckless Artist

The best example of this mythologizing can be found in statements coming from Public Knowledge, one of the driving forces behind this legislation. On May 29, 2008, Gigi Sohn, President and Co-Founder of PK, explained to listeners at the Center for Intellectual Property why artists perversely oppose these bills:

“Now let me tell you what the main opponents of orphan works legislation really don’t like about it…[they] don’t like the fact that good faith users- those who are willing to pay but can’t figure out who to pay – might be able to use their works without permission and without the maximum financial punishment. They want to control every use of their works, and whether or not they receive fair payment is beside the point.” http://www.publicknowledge.org/node/1594 *

And on August 21, 2008, her colleague at PK, Alex Curtis, reiterated the theme:

“Visual artists say they have a problem, that no one can find their work, or at least match them as the owner of their work.” http://www.publicknowledge.org/node/1717

“Visual artists say they have a problem, that no one can find their work…” Actually we’ve never said any such thing. In fact we’ve explicitly said the opposite. Here’s just one example, from a sample letter we posted on our CapWiz site May 3:

“I am told that the Copyright Office conducted a study of Orphan Works and that these bills are based on that study. I understand that an orphan work is a work whose owner can’t be located. I am alive, working and managing my copyrights. I can be located. My clients locate me all the time. But that does not mean that anyone anywhere can find me. And frankly, why should the failure of any one person to find me be the measure of whether or not I can be found?

“What if 1000 people can find me but one can’t? Why should that one person get a free pass to use my work?” http://capwiz.com/illustratorspartnership/issues/alert/?alertid=11333406

“I can be located. My clients locate me all the time.” I don’t see how we could say it any more clearly.

Far from complaining that we can’t be found, an entire food chain of collateral markets currently exists to facilitate the process by which image buyers successfully find image sellers: Agents, commercial directories, trade shows, ads in trade publications, direct mail, web sites and email solicitations – all attest to the fact that hundreds of thousands of creators are engaged daily in the robust business of making themselves accessible to potential users.

All of these businesses will be hurt by a bill that legalizes the infringement of the work they trade in. None will be helped by placing on them the onerous and costly burden of registering and maintaining tens of thousands – or for photographers, hundreds of thousands – of individual copyright registrations, not to mention the impossible burden of trying to monitor infringements of their work, which can occur anytime, anywhere in the world.

The Orphan Works proposals under consideration would not create new ways for buyers to find sellers. It would merely allow opportunists to co-opt the existing markets of creators and of the collateral businesses that serve them.

As artists we already know this. Our chore is to hold this bill over until the next Congress, then work to counter the false logic of market failure created by the unwarranted conclusions of the Copyright Office’s Orphan Works Report.

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

*Presented to the Center for Intellectual Property 8th Annual Intellectual Property Symposium, University of Maryland University College May 29, 2008

Tomorrow: A Bill Too Far

The Orphan Works Act of 2008 (H.R. 5889) has not been passed by the House of Representatives, but could be placed on the Suspensions calendar and passed by the lame duck session of Congress scheduled to re-convene this week. The Illustrators’ Partnership is asking lawmakers to hold the bill over to the next session of Congress, when rightsholders can have an opportunity to have their case heard before the full Judiciary Committee.

For news and information, and an archive of these messages:
Illustrators’ Partnership Orphan Works Blog: http://ipaorphanworks.blogspot.com/

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

With the Orphan Works bill, maybe they will.

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

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

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

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

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

FROM THE ILLUSTRATORS’ PARTNERSHIP

Orphan Works: Lame Duck Countdown

12.01.08

Part I. Little Known Facts

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

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

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

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

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

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

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

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

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

7. The first commercial Orphan Works domain name was registered by an anonymous party more than two years before the Copyright Office announced their Study. Did this anonymous party have a crystal ball? How did he know the Copyright Office would ever study orphan works? How did he know they’d open the door to commercial usage? And why did he register anonymously?

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

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

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

- Brad Holland and Cynthia Turner, for the Board of the Illustrators’ Partnership
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Over 80 organizations oppose this bill, representing over half a million creators.

Artists Against Orphaned Works

Plese write your representatives, blog it, Facebook it, do whatever you can. The livelihoods of your favorite artists are in jeopardy.

Much thanks,

Todd

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.”

There are so many ways this thing is bad news. But the illustrator’s Partnership explains it better than I can:

FROM THE ILLUSTRATORS’ PARTNERSHIP

Orphan Works: A Public Knowledge Postmortem

10.9.08

“Orphan works relief was vigorously opposed by visual artists… And while we have thought some of their concerns misguided, they did a fine job of organizing and getting their voices heard.”

That was the rueful conclusion Monday from the President of Public Knowledge. She was conducting a postmortem on her blog to explain why their last minute efforts to pass the Orphan Works Act failed last week.

Public Knowledge is one of the key special interest groups driving orphan works legislation. And while interested parties around the country were being told all week that the bill was dead, she now confirms that there was a secret last minute push to pass it:

“[W]ith the country’s financial crisis raging [she writes] and Congress in the middle of deliberations over a bill to rescue our financial institutions, there was still an opportunity to get a bill done. But how? The best option was to get either House Courts, Internet and Intellectual Property Subcommittee Chairman Berman or House Judiciary Committee Chairman Conyers to take the Senate bill that passed and 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, but it needs a 2/3 majority to pass (italics added).

“On Saturday, September 27,” she continues, she and others “were on the phone imploring the members to move the bill…”:

“The negotiations went on for hours and hours on Thursday into Friday, but in the end, PK, working with the user community (libraries, documentary filmmakers, educational institutions and the College Art Association) could not agree with [sic] on language with the House staff. Late Friday afternoon, the House voted in favor of a bailout bill and everybody went home. Time had run out.” — Gigi Sohn

Public Knowledge has a “Six Point Program” to undo existing copyright law. “Orphan Works Reform” is Number 5. http://www.publicknowledge.org/node/1245 And while they’re “disappointed” they weren’t able to pass the bill this session, she advises supporters to “focus on what positive things came out of the process, so [they] can move forward quickly next year.”

PK says artists have learned their lesson

In her opinion, one of the “positive things” to “come out of the process” is that:

“[V]isual artists, graphic designers and textile manufacturers who opposed orphan works relief now understand that they must change their business models.” (Italics added.)

Artists “must change their business models”? Is that a sound we hear from inside the Trojan Horse?

Whatever happened to the claim that this bill was only a minor tweak to copyright law – to let libraries and museums digitize their collections of old work – or let families duplicate photos of grandma?

That was the argument lawmakers heard last spring, when the bill was rolled out suddenly, scripted for quick and easy passage. But now that the anti-copyright lobby has had to fight for it, they’ve dropped their guard. Now it’s time to openly lecture artists that the world is changing and we’d better get used to registering our work with privately owned “databases” — at least if we want to ensure that our works won’t become orphaned.

But of course that was the agenda all along.

PK says not all artists are misguided

PK’s President wants Congress to know that not all artists are “misguided” – only those that oppose the bill. Currently, 80 professional groups do.

By contrast, she cites the Graphic Artists Guild as an example of artists who have learned their lesson. She praises GAG as “enlightened,” because GAG supported the House version of the bill. She quotes a recent letter from GAG’s President in which he admonished artists to “get real about this Orphan Works scare”:

“I don’t think Orphan Works is going to have a dramatic influence on how we do business [he wrote], but I hope it has awakened us all to the importance of tending to business issues. If we as a community invested a fraction of the energy we’ve expended on an apocalyptic vision of Orphan Works into protecting our own creations, protesting unfair contracting practices or writing letters to low-paying publishers, we’d be in a far better market position than we are today. The fact is that we give away more in the every day practice of our businesses than the government could ever take from us.”

We replied to the GAG letter weeks ago, when it was first circulated to artists. We obviously disagree. Indeed, we’d point out that what the community of artists is doing by opposing this bill is “protecting our own creations”:

The Orphan works bill would have a dramatic affect on business, because it would let people infringe our work without our knowledge, consent or payment.
Most people who succeed in our field do “treat art as a business.”
People who are bad at business can’t be used as proof that successful people must change their business models.
You can’t justify exposing an artists’ property to theft by telling him he didn’t write enough “letters to low-paying publishers.”
What artists do or don’t “give away” on their own doesn’t justify government’s taking anything from them.
It’s counter-intuitive to tell small business owners we should accept a bill that’s bad for business to prove that we’ve “awakened to the importance of tending to business.”
If we don’t fight to keep the work we create, that would be the ultimate failure to tend to business.

A full response to the entire GAG letter is here: http://ipaorphanworks.blogspot.com/2008/09/orphan-works-why-bet-against-ourselves.html

The Orphan Works Act was based on a premise and a conclusion:

The premise is that the public is being harmed because it doesn’t have enough contact information to locate copyright owners.
The conclusion is that artists must change their business models.
What’s lacking is any evidence in between.

The Orphan Works Act was based on recommendations by the Copyright Office. But the Copyright Office studied the specific subject of orphaned work. They did not study the business models of artists who are alive, working and managing their copyrights. That means there can be no meaningful conclusions drawn from their study to dictate that such artists must change their business models.

From the beginning, artists have said we’d support a true orphan works bill. We’ve submitted precise amendments that would make one out of this bill. http://ipaorphanworks.blogspot.com/2008/07/hr-5889-amendments.html Our amendments have never been considered.

Instead, as PK’s President noted in her postmortem, their last minute strategy for passing the bill would have “put it on the ’suspension calendar.’” And “[t]here can be no amendments to bills placed on the suspension calendar…”

The anti-copyright lobby is well funded. They have powerful backers. They’ve warned us they’ll be back next year.

We should take them at their word.

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

Over 80 organizations oppose this bill, representing over half a million creators.

U.S. Creators and the image-making public can email Congress through the Capwiz site: http://capwiz.com/illustratorspartnership/home/ 2 minutes is all it takes to tell the U.S. Congress to uphold copyright protection for the world’s artists.

INTERNATIONAL ARTISTS please fax these 4 U.S. State Agencies and appeal to your home representatives for intervention. http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00267

CALL CONGRESS: 1-800-828-0498. Tell the U.S. Capitol Switchboard Operator “I would like to leave a message for Congressperson __________ that I oppose the Orphan Works Act.” The switchboard operator will patch you through to the lawmaker’s office and often take a message which also gets passed on to the lawmaker. Once you’re put through tell your Representative the message again.

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com Place “Add Name” in the subject line, and provide your name and the email address you want used in the message area. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

Please post or forward this message to any interested party.
STOP THE U.S. ORPHAN WORKS ACT NOW.