Orphan Works Legislation

If you are concerned about your ability to make a living as an artist under proposed changes to copyright law, it is time to act. Over 2600 letters were written in the initial comment period. Most by artists concerned about or against the proposed changes to copyright.  But now it is time to put a nail in the coffin. Below is a communication we are passing on from the Illustrators Partnership. Please take some time to read some of the letters written and either write a first one for yourself (in case you missed the initial opportunity), or comment on points made by others.  This is important to show that those interested in gaining access to your art, on their terms, will not have the last say...

Your GNSI Board of Directors supports strong protection for your copyrights and urges you to stand up and do the same. Writing a letter to the Copyright Office will have a real impact.

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From the Illustrators Partnership:

We want to thank all of you who wrote to the Copyright Office several weeks ago regarding the return of Orphan Works legislation. The Copyright Office received nearly 2,600 letters, an unprecedented response.

Nearly all are from artists protesting the draft legislation proposed to Congress in June.

To put our response in context, orphan works legislation has been based on fewer than 215 letters sent to the Copyright Office in 2005. That means our initial response trumped those total comments by a factor of 10.

The letters have been posted here: http://copyright.gov/policy/visualworks/comments/ 
You may find accessing the full set of comments in this PDF a bit of a challenge. See these instructions if you have problems.

Now the next step will be to write "reply comments." We hope everyone will take the opportunity to write again.

A "reply comment" can take any form you'd like. We'd suggest 1 of 2 ways:
1. Take one or more comments you agree with and say that you agree.
2. Take one or more comments you disagree with and explain why you disagree.

We invite you to consider endorsing the letter submitted by the Illustrators Partnership. Its key sentence reads:

"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."

The full letter can be found in Document #1: Direct Initial Comments
It's listed alphabetically under Illustrators Partnership

Reply Comments are due October 1, 2015

American and foreign artists can both submit their letters online here.

Comments must be submitted using the comment submission form or they will not be considered part of the public record. 

Please be advised: "The Office intends to post the written comments and documentary evidence on its website in the form in which they are received. Parties should keep in mind that any private, confidential, or personally identifiable information appearing in their comment will be accessible to the public."

Special note to foreign artists: If you are submitting from outside the US, under "State," please scroll down to the bottom and select "Non-U.S.A. Location."

For those who didn't write the first time, please don't miss the opportunity to do so now.

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

Please post or forward this artist alert to any interested party. 

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SAMPLE LETTER 

September 28, 2015 
 
Maria Pallante, Register of Copyrights 
US 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 Copyright Office Staff:
 
Thank you for the opportunity to reply to the initial comments generated by the Visual Arts Notice of Inquiry. As a working artist/illustrator, I support the comments submitted by the Illustrators Partnership regarding the Constitutional issues raised by the proposed orphan works legislation.
 
Article 1, Section 8 of the Constitution grants artists the exclusive rights to our work. It is my understanding that those rights cannot be abridged except by a Constitutional amendment. Yet the orphan works proposals the Copyright Office has recommended to Congress would abridge those rights. I could never again enjoy the exclusive right to any work I create if anybody anywhere is allowed to exploit it at any time, for any reason (except fair use), without my knowledge or consent. Because "orphan works" legislation would not be limited to true orphaned work, it would convert every artist's exclusive right to a non-exclusive right. That would be a fundamental change to a Constitutional provision and I do not think Congress can legally alter the Constitution by means of a statute law.
 
The Fifth Amendment to the Constitution creates another serious conflict. It states that no citizen's private property "shall" be taken by the government for public use without "just compensation." The work I create is my private property: Article I, Section 8 has established that. So if government lacks the right to confiscate it without just compensation, I do not see how it can grant that right en masse to the public.
 
The logic behind the Constitution's Copyright Clause should be self-evident: no individual can enter into any agreement to sell or license property - or dispose of it in any other fashion - unless he or she owns the property. To make the public part owner of every citizen's intellectual property - which is effectively what the proposed legislation would do - would make all contracts regarding the disposition of that property essentially meaningless. Orphan works infringements would therefore nullify millions of private business contracts between artists and the clients they've licensed work to. 
 
When individuals knowingly interfere with the contracts or business affairs of others, it's called tortious interference and under the law there's a remedy for that. But here the interfering party would be the US government. Legislative immunity would, of course, 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?
 
Proponents of the proposed legislation have stated that "good faith" infringers must be given "certainty" that if their infringements are detected, they will not be subject to penalties. And I agree that certainty in the markets is essential to the promotion of "Science and useful arts." Yet it is the current copyright system that provides certainty. Where creators exercise exclusive control over their rights and enter into voluntary agreements with known clients there is certainty all around. All parties understand the terms they've agreed to and with whom; and all parties are in a position to monitor mutual compliance.
 
By contrast, any legislation that voids an author's exclusive right would make it impossible for either creators or their clients to know who, where or on what terms any particular work is, has been or will be used by others. This would inflict total chaos in commercial markets. It would not only cause economic harm to creators, but to their clients across a broad swath of the economy. 
 
On pages 50-51 of its 2015 Report on Orphan Works and Mass Digitization, the Copyright Office states that it "takes [such] concerns seriously, but does not believe that they outweigh the benefits of comprehensive orphan works legislation..." 
 
Benefits? Benefits for whom? Not benefits for artists, who would lose their rights, but for infringers who would gain them! 
 
For the sake of guaranteeing certainty to infringers in the secondary rights market, the proposed legislation would create perpetual uncertainty for creators and their clients in the country's primary markets. This would be a total reversal of the principle of copyright as expressed in Article 1, Section 8 of the Constitution; and with all due respect, a Constitutional provision cannot be reversed legally except by means of a Constitutional amendment.
 
Thank you again for the opportunity to express these thoughts.
 
Sincerely,

 

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