(Updated 21st July, added comment by artist Tim Perkins): Proposed changes to US copyright law, effectively re-inventing the failed “Orphan Works” act put forward seven years ago, have come under attack from a huge number of artists and writers, including Rolling Stone and New Yorker artist Brad Holland, one of the founders of the Illustrators’ Partnership of America.
The deadline for US creators to respond to the discussion instigated by Congress – which might effectively lead to the wholescale privatisation of copyright in the United States and, ultimately, impact on the way copyright matters and revenues for creators are handled in other countries – is Thursday 23rd July 2015 and Brad is urging anyone US-based who may be affected to register their views.
Talking to Will Terry in a far-reaching YouTube podcasts that highlights some of the money already not reaching visual artists, Brad warns that there’s a good chance creators are going to lose the rights to their work unless legislation that’s being proposed to Congress, backed by large web corporations, goes ahead – legislation he argues is similar to that adopted in the UK under the coalition government, which came into force last year.
For more than a year Congress has been holding hearings for the drafting of a brand new US Copyright Act. At its heart is the return of Orphan Works,” says Brad on his own web site. “Twice, Orphan Works Acts have failed to pass Congress because of strong opposition from visual artists, spearheaded by the Illustrators Partnership.
“Because of this, the Copyright Office has now issued a special call for letters regarding the role of visual art in the coming legislation. Therefore we’re asking all artists concerned with retaining the rights to their work to join us in writing.
“The Next Great Copyright Act would replace all existing copyright law, he outlines. “It would void our Constitutional right to the exclusive control of our work, ‘privilege’ the public’s right to use our work, ‘pressure’ you to register your life’s work with commercial registries and it would ‘orphan’ unregistered work.”
“This has the potential to infect every country in the world,” argues Will Terry. “We need help to stop this as soon as possible! Brad Holland is an expert in this new legislation and explains why artists worldwide will suffer if our current copyright law is replaced by the new proposals.”
Will and Brad’s views are echoed by British comics artist and publisher Tim Perkins, who has also previously campaigned against the proposed US “Orphan Works” proposals.
“The last time this reared its head I was in constant contact with Steve Bissette who, just like me was very vocal about this insidious Bill,” he says. “After the US senate was forced to at least delay the Bill the UK government in response to this, immediately created a work-around. This was solely due to the US Bill being fought so ardently by artists of all kinds, actors, singers, photographers, artists, sculptors, writers, etc from all over the world. Millions had signed up in just 24 hours.
“The UK Government created a way of controlling the amount of received protests by making the UK petition ONLY eligible to UK residents, not even ex-pats. Cynical or what?
“I have to admit that the UK response at the time was so apathetic, something I commented on at the time.
“I pray that this time that same apathy does not stop people from adding their voice to the opposition petition. It does not just affest US artists.
“Presently, we have had no instances reported of anyone’s copyright being threatened here in the UK, but I really think that this is only due to the corporates waiting for the final nail in the coffin if the US Bill is passed, which is far more powerful a stance on this.
“All I can suggest is that, just like millions of us did last time, we fight this Bill tooth and nail, and, before anyone starts with the, ‘Well it doesn’t apply to me as I work for such and such publisher’… Yes, sadly it will, because no one would be safe. Once a creative thing is made then under this Bill anyone can just rip it off. If you produce your own stuff this will hit right away.
“This is far worse than even the Piracy blight affecting publishing at this very moment,” he continues. “If it makes my argument any firmer and I truly hope this next bit does, just look at the amount of folks ripping off other artists on DeviantArt, the Galleries in Europe selling copyrighted imagery as Fine Art works and being brought to task, and the folks well known in the comic industry alone that are selling fakes, such as original art etc, that have been publicised and well documented in the past ten years. At this moment this is manageable and we are able to fight against these acts.
“Now add to that the sudden right for anyone, including corporates, to do this legally and you must be able to see that we are looking at the instant death of making a living of any kind from creating any form of art. Don’t sit by and watch this happen.”
How UK Copyright Law Has Changed since 2013
In the UK, making a living from the visual arts isn’t getting any easier. Negotiating the pitfalls of bad contracts and exploitative small print can be frustrating. Luckily, awareness of the problem is growing, so you are not alone. The Pro-Action Campaign and Liaison Group was established in 2006 and primarily represents the interests of professional visual artists.Pro-Action has challenged various companies on their contract practice. These include Condé Nast, Bauer, IPC (now TIME Europe), The Guardian, Future Publishing (Computer Arts), Cambridge University Press and News International.
The Enterprise and Regulatory Reform Act
The Stop 43 photographers campaign group highlighted the changes to UK copyright made by the Enterprise and Regulatory Reform Act back in 2013. Normal copyright law as agreed in international copyright treaties, to which the UK is signatory,grants copyright owners ‘the exclusive right of authorizing the reproduction of [their] works, in any manner or form.’
Creators don’t have to apply for this right: it is theirs automatically and without formality. This means that unless it is used under one of the narrowly-defined Fair Dealing exceptions to copyright allowed by these treaties, it is illegal to exploit a copyright work without the permission of its owner.
The EAA Act, which received Royal Assent in April 2013, changed that. Under its provisions it is now legal to exploit a copyright work – photograph, film, text, song, whatever – without the knowledge, permission of, and payment to, its owner. As the BBC reported, photographs or other creative works can be used without the owners’ explicit permission as long as a “diligent search” has taken place.
The Stop 43 web site has details and rebuttal to government claims made at the time here.
The UK Orphan Works Act
The Government rushed out its controversial “Orphan Works” licensing scheme in 2014 – but The Register reported how their web site was broken on arrival, “and if it doesn’t start working almost at once it probably won’t get the chance.
“The rushed release is no coincidence,” the Register noted. “It means, perhaps, that the UK can technically claim that it had a “pre-existing Orphan Works scheme” before October 29th.” That was when a European Union Directive on Orphan Works (2012/28/EU) came into effect which allowed EU member states to preserve any Orphan Works schemes that they might already have rather than follow the Directive to the letter.
The Register story notes that the UK stance on orphan works has long raised hackles among rights owners and creators, especially photographers both professional and amateur (and, presumably, artists). Most current “orphan works” are not historical images locked away in vaults, or dusty old books whose authors cannot be located: but rather digital photos with the identifying metadata purposely stripped off.
The EAA Act changes that. Under its provisions it will be legal to exploit a copyright work – photograph, film, text, song, whatever – without the knowledge, permission of, and payment to, its owner, providing the user can claim they made a “diligent” search to find the copyright owner.
US copyright law is not UK or European copyright law and there are differences, good and bad, in all territories and countries the concern, obviously, is that changes in the US will be adopted elsewhere because any change there gives corporations more power.
• The deadline for responses is 23rd July 2015. You can submit letters to the Copyright Office online here
• Watch the video interview with Brad Holland on Youtube here | Read the Copyright Office Notice of Inquiry here | Read the Copyright Office’s 2015 Report on Orphan Works and Mass Digitization here
• Illustrators’ Partnership Blog: http://ipaorphanworks.blogspot.com
UK Copyright Changes
• Here’s a quick guide to UK Copyright Law fact sheet from the commercial organisation UK Copyright Service. Copyright is an automatic right and arises whenever an individual or company creates a work. To qualify, a work should be regarded as original, and exhibit a degree of labour, skill or judgement.
• This British government press release published in June 2014 outlines the changes (describing them as “small” which is untrue, in my view) and contains web links to the relevant documents
How to get permission to copy a creative work for which the right holder(s) cannot be found ie an orphan work.
On launch, Image search on this site was broken by design – there’s no way to search for an image lacking metadata, which is the definition of an orphan work.” It’s a massive fail,” commented Paul Ellis of photographers’ rights group Stop 43.
Even now, it’s pretty useless:a search for “Comic” or “cartoon” reveals no results for example. A positive search for “World War One” images lists just 195 instances, but a single result, such as this incorrectly captioned image of an early aircraft, provides details of the image holder but not contact link or details. You have to do a separate web search to find the holders of the image, the Museum of the Order of St John.
• See also: European Union Directive on Orphan Works (PDF)
• The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations and Copyright and Rights in Performances (Quotation and Parody) Regulations were introduced into UK law on 1 October 2014. A number of other changes to UK rules on copyright exceptions were introduced earlier this year.
• Since they were introduced Professor Ian Hargreaves, the academic behind copyright law changes has warned that rights holders could lose even more control of content by taking test cases to court
• The Association Of Illustrators (Illustrator membership £150 a year or £12.50 per month) actively campaigns to maintain and protect the rights of our members. These are increasingly under threat, for example in the form of copyright assignment agreements and potentially damaging orphaned works legislation.
AOI is a member of the Pro-Action Campaign and Liaison Group, the British Copyright Council and Creators’ Rights Alliance who lobby government on copyright and related issues and the European Illustrators Forum.
As the only body to represent illustrators and campaign for their rights in the UK, the AOI has successfully increased the standing of illustration as a profession and improved the commercial and ethical conditions of employment for illustrators.
• The Return of Orphan Works: “The Next Great Copyright Act” by Brad Holland
• Trojan Horse: Orphan Works and the War on Authors by Brad Holland
• Orphan Works Legislation — A Bad Deal for Artists by Bruce Lehman, Esq.
• Perfect and Strengthen Your Copyrights by Cynthia Turner
• Artists’ Rights are Human Rights by Chris Castle
• VIDEO: An Evening with Bruce Lehman A Webcast presentation from Society of Illustrators (SI)
New York – February 21, 2008 • Sponsored by ASIP And SI
Q & A about illustrators’ reprographic rights and their right to remuneration.
• VIDEO: Orphan Works Roundtable Conducted by the Small Business Administration, Salmagundi Art Club, New York, NY
Initiated by the Illustrators’ Partnership of America, the Artists Rights Society and the Advertising Photographers of America, and conducted by Tom Sullivan, Director of the Office of Advocacy of the US Small Business Administration. This was the first effort to assess the economic impact of the Orphan Works Acts H.R. 5889 and S. 2913 on creators and small businesses. Seventeen distinguished panelists spoke, all freelance working artists and stakeholders who would be directly impacted by this proposed legislation. Six 3’x4’ exhibit panels demonstrated orphan work infringements.
Presenters submitted written statements to IPA after the meeting. We compiled these into notebooks and distributed 14 notebooks of SBA Orphan Works Roundtable statements to key members of the Senate and House Judiciary Committees.
• Thanks to Tony Luke and Bill Sienkiewicz for the heads up on this item, and Mark Ayres and Bill McConkey for some of the links above
The founder of downthetubes, which he established in 1998. John works as a comics and magazine editor, writer, and on promotional work for the Lakes International Comic Art Festival. He is currently editor of Star Trek Explorer, published by Titan – his third tour of duty on the title originally titled Star Trek Magazine.
Working in British comics publishing since the 1980s, his credits include editor of titles such as Doctor Who Magazine, Babylon 5 Magazine, and more. He also edited the comics anthology STRIP Magazine and edited several audio comics for ROK Comics. He has also edited several comic collections, including volumes of “Charley’s War” and “Dan Dare”.
He’s the writer of “Pilgrim: Secrets and Lies” for B7 Comics; “Crucible”, a creator-owned project with 2000AD artist Smuzz; and “Death Duty” and “Skow Dogs” with Dave Hailwood.