Illustrators' Partnership of America and Co-Chair of the American Society of Illustrators Partnership, Is One of Those Opponents
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I L L U S T R A T O R S ‘ P A R T N E R S H I P 8 4 5 M O R A I N E S T R E E T M A R S H F I E L D , M A S S A C H U S E T T S USA 0 2 0 5 0 t 7 8 1 - 8 3 7 - 9 1 5 2 w w w . i l l u s t r a t o r s p a r t n e r s h i p . o r g February 3, 2013 Maria Pallante Register of Copyrights US Copyright Office 101 Independence Ave. S.E. Washington, D.C. 20559-6000 RE: Notice of Inquiry, Copyright Office, Library of Congress Orphan Works and Mass Digitization (77 FR 64555) Comments of the Illustrators’ Partnership of America In its October 22, 2012 Notice of Inquiry, the Copyright Office has asked for comments from interested parties regarding “what has changed in the legal and business environments during the past four years that might be relevant to a resolution of the [orphan works] problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation at this time.” As rightsholders, we welcome and appreciate the opportunity to comment. In the past, we have not opposed orphan works legislation in principle; but we have opposed legislation drafted so broadly that it would have permitted the widespread orphaning and infringement of copyright-protected art. In 2008, the Illustrators’ Partnership was joined by 84 other creators’ organizations in opposing that legislation; 167,000 letters were sent to members of Congress from our website. The artists behind those letters earn their living by licensing the work they create. That fact has not changed in the last four years. Therefore before addressing some of the factors that have changed, we think it’s important to examine some that have not. In Part I we’ll summarize several key factors that have remained constant: 1. The High Cost of Compliance The great expense (in both time and money) of digitizing and cataloging tens of thousands of copyrighted works in order to register them with commercial registries would make compliance impossible for all but the richest artists and would therefore make their ability to protect their rights a function of their ability to pay. 2. No Credible Evidence of “Market Failure” There has still been no credible evidence of a “market failure” in commercial markets to justify the expansive scope of legislation recommended by the 2006 Report on Orphan Works and drafted by the 109th and 110th Congresses. 3. Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works imposes specific constraints on the possible limitations and exceptions a Member Country may make to an author’s exclusive right of copyright; and we submit that the orphan works bills previously drafted by Congress would violate all three steps of its “three-step test.” 4. Artists’ Negative Experience With existing Commercial Databases The reluctance of artists to submit their work to unnamed for-profit databases “to be created in the private sector” is not grounded in abstract fears or reservations, but is based on actual business practices and negative experience with existing commercial databases. B R A D H O L L A N D, I L L U S T R A T O R C. F. P A Y N E, I L L U S T R A T O R B R U C E L E H M A N, A T T O R N E Y AT L A W E L E N A P A U L, A T T O R N E Y A T L A W D A V I D L E S H, I L L U S T R A T O R C Y N T H I A T U R N E R, I L L U S T R A T O R I L L U S T R A T O R S ‘ P A R T N E R S H I P O F A M E R I C A In Part II we’ll comment briefly on how the following developments will affect visual artists: 1.The US Small Business Administration Roundtable: “HoW Will the Orphan Works Bill Economically Impact Small Entities?” Although conducted in August 2008, this panel was the first, and to our knowledge, only forum ever conducted by a US government agency to assess the impact of previous orphan works legislation on creators and other small businesses. The papers submitted to that forum, which have never been previously considered, will be attached as Appendix A. 2. Orphan Works Developments in the European Union On October 25, 2012 the European Parliament and the Council of the European Union passed Directive 2012/28/EU on certain permitted uses of orphan works. This legislation is laudable and notable in many respects, one feature of which is its recognition that visual art presents unique problems for any orphan works regime, and has therefore exempted stand-alone visual art until such time as a just long-term solution can be formulated. The full text of the Directive will be attached as Appendix B. 3. Suggested Amendments In an effort to amend previous legislation, the Illustrators’ Partnership, Artists Rights Society and Advertising Photographers of America proposed amendments drafted by attorney Bruce Lehman, former Commissioner of the US Office of Patents and Trademarks, that would have granted libraries and museums the latitude they need to digitize and preserve their archives in the digital age, but would do so without opening the doors to the unjust commercial infringement of art by working artists, as the legislation drafted by the 109th and 110th Congresses would have done. We offer these amendments and Mr. Lehman’s commentary on them as a guide to any future legislation. 4. Copyright Small Claims Court In theory, the concept of a short order court of law to settle copyright disputes would no doubt appeal to many artists. But creating a new form of legalized infringements, as past orphan works bills would have done, and offering a small claims court as a solution to the wave of infringements that will result is not a workable approach. 5. Court Rejects Google Book Search Settlement Like the Orphan Works Acts of 2008, the failure of the 2008 Google Book Rights Settlement has highlighted the age-old problem of separating individual rights from the collective. I. What Things Have Not Changed 1. The High Cost of Compliance The high cost of digitizing and registering works of art is a matter of fact. The costs (in both time and money) necessary to prepare work for archiving have not changed in the last four years and will not change for the better in the foreseeable future. We think it is impossible to overstress the importance of this factor. Indeed, we think the practical inability of artists to comply with the kind of orphan works legislation previously drafted by Congress outweighs decisively any possible arguments for its passage. Yet because the previous legislation was drafted behind closed doors without any responsible input from the working artists it would affect, this fundamental matter of expense appears never to have been taken into account. To understand why it is – or should be – the decisive factor in any orphan works legislation affecting visual artists, we need to break it down to its component parts. The High Cost of Registration The high cost of registering works of visual art was the most important theme to emerge from the 2008 Roundtable on Orphan Works conducted by the US Small Business Administration (SBA). While nearly all artists and photographers stressed it – and while the exact figures vary according to an artist’s age, productivity and the genre in which he or she works – the precise figures supplied by White House photographer John Harrington should suffice to make the point: Illustrators’ Partnership of America Page 2 – Orphan Works and Mass Digitization I L L U S T R A T O R S ‘ P A R T N E R S H I P O F A M E R I C A “Consider that I have submitted several-hundred-thousand of my images to the Copyright office for my registrations that date back to 1989, and I did so and paid fees for each registration, exactly because I wanted to protect my images. For example, in 2006, I registered 58,731 images, and in 2007, 71,919 images. If a [for-profit] registry charged $0.50 per image to submit and process, I would have to pay $29,365.50 to protect my 2006 images, and $35,959.50 to protect my 2007 images, for just those years. For the remaining 16 years of [past] registrations, those costs would increase at least ten-fold. Even if the cost were to drop to $0.01, just those two years [2006/2007] would incur a cost of $6,532.50.” (Emphasis added)1 And the proposed legislation would have required him to register his entire life’s work – past, present and future – with at least two registries. Most graphic artists would have fewer images than photographers, but still the cost of digitizing and registering any artist’s body of images– particularly those of older artists with decades of past work – could easily run into the high tens of thousands of dollars.