The U.S. Copyright Office has published a call for comments from photographers and visual artists about how their works are “monetized, enforced and registered” and about “obstacles” artists face protecting their copyrights “when navigating the digital landscape.” The U.S. Copyright Office announced the research initiative April 24 in the Federal Register. The written comments are due by July 23.
What action, if any, the U.S. Copyright Office takes as a result of its research remains to be seen. “We just want to get an overview of the landscape,” says spokesperson Catie Rowland. “We’re just researching it, to see where it leads. There are a lot of concerns. We want to see if we can address them.”
Visual artists have been sharing their concerns and frustrations with the Copyright Office for years over registration burdens and the challenges of protecting their copyrights in the face of widespread online infringement. Rowland acknowledged that the issues the U.S. Copyright Office is seeking comment on “have been brought up for a long time.”
But the Copyright Office has struggled to act on the issues to make any changes in registration rules or copyright law because creators, distributors and users of copyrighted works are often bitterly divided by their conflicting interests. For instance, the push for several years by the Copyright Office for orphan works legislation died because users of visual works and organizations representing creators were hopelessly divided on the details of the legislation.
According to the April 24 call for comments, the Copyright Office will use the information it gets “to build upon its longstanding policy interests, in a number of areas such as small claims, the making available right [sic], resale royalties, registration, recordation, and the interoperability of records.” It also says, “this is a general inquiry that will likely lead to additional specific inquiries”—in other words, the result of this study will probably be more studies.
Rowland says the Copyright Office has no specific legislative goals at this point.
American Photographic Artists has notified its members that the Copyright Office is seeking comment. APA executive vice president Michael Grecco says photo trade groups recently met with the U.S. Copyright Registrar to present “this idea that we ought to get paid the same way musicians get paid” through rights clearinghouses such as ASCAP and online streaming services such as Spotify.
Grecco says APA and other organizations brought proposed legislation for establishment of a rights clearinghouse to the U.S. Copyright Office. “We’re saying the system is broken. [The registrar’s] reaction was surprise at how desperate and broken this is” for artists and for those who want a practical way to use copyrighted works legally.
The proposal was what gave the Copyright Office the impetus to study once again the copyright challenges of visual artists.
Grecco was quick to emphasize that photographers wouldn’t give up their rights under the proposal to manage primary licensing themselves, i.e., collect license fees for use of their images by publishers and advertisers. But a rights clearinghouse would provide photographers with a practical way to collect fees for small online uses that now account for widespread infringement of photographers’ rights, Grecco says.
Efforts to build licensing clearinghouses on the foundations of current law have failed. For instance, ASMP tried—and failed—to set up a rights clearinghouse twenty years ago. Grecco says ASMP just didn’t do it the right way.
Jamie Silverberg, an attorney representing APA, says the APA proposal for a rights clearinghouse would not change copyright law, other than to make online content distributors such as Google liable for infringement by its users, if they continue to infringe photographers’ copyright rather than pay license fees to a collecting society established by law.
Asked if Google would fight against such a proposal, Silverberg said. “Sure. Of course they’re going to fight it.” But, he added, maybe they’d figure out a way to make money from the system, if creators manage to get a law passed despite Google and other likely opponents.
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