In the past few months, our advocacy counsel Mike Klipper and I have been working to advance ASMP’s priorities for 2019, before Congress and the U.S. Copyright Office (USCO). We met in December with representatives of other groups championing the interests of visual artists to plan our strategy for 2019.
For example, along with those visual artists groups, we met with Karyn Temple Claggett, the Acting Register of the U.S. Copyright Office, members of her staff, and various congressional offices to push enactment of small claims legislation (the “CASE Act”). Among other things, we continue to spend considerable time working with these groups and the Copyright Alliance to line up sponsors on the House and Senate Judiciary Committees so we can get the CASE Act reintroduced as a bill early in this session of Congress.
As soon as we have news regarding the reintroduction of the CASE Act, we will update you and begin activating a grassroots response to encourage the movement of the bill through the respective committees and hopefully on to final passage by both chambers.
Significantly, along with visual artists groups, we also filed a lengthy and comprehensive response to a notice of inquiry (“NOI”) posted by the Copyright Office that addresses a variety of critical issues pertaining to the modernization of the copyright registration process, including new pricing options for registration of photographs and novel ways to make registration more reasonable and worthwhile for our members. ASMP member Sean Fitzgerald took the lead in drafting a group response to the NOI on behalf of ASMP, working with Mike Klipper. Sean is a former attorney turned nature photographer from Dallas, and he has been hugely helpful as a partner in our advocacy efforts. Mike and I are grateful for his commitment and ongoing partnership in drafting NOI responses. The NOI brief was filed on Jan. 15, 2019 to meet the USCO deadline.
Copyright Office Submits Letter to Congress Detailing Challenging Issues Faced by Visual Artists
Also of significance shortly after we filed the NOI response, the Copyright Office completed action on an inquiry it launched in 2015 to “analyze the copyright landscape in which visual artists must work, and … the most challenging issues faced by both visual artists and those who seek to use their images.” At that time, the Copyright Office requested interested parties to submit written comments and subsequently, ASMP filed detailed comments on issues of great importance to ASMP members and other visual artists.
In its comments, ASMP explained the myriad challenges facing its members. It also shared the Society’s views on regulatory and statutory changes that would improve significantly the ability of visual artists to meet those challenges. In addition to describing how the copyright registration process could be modernized to better suit the way that photographers work, ASMP addressed the need for the enactment of a copyright small claims law as a viable alternative to federal court litigation.
On January 18, 2019 the Copyright Office submitted identical letters to both the House Judiciary Committee and the Senate Judiciary Committee setting forth the results of its “visual artists” inquiry.
Basically, the Copyright Office letters focused on three key challenges facing visual artists:
(1) difficulties in the registration process;
(2) challenges in licensing generally and monetizing visual works online in light of the changing online marketplace; and
(3) general enforcement obstacles.
1. Difficulties in Registration. With respect to concerns raised by visual artists that the existing online registration system, eCO, was grossly inefficient and was not working for high volume creators, the Copyright Office announced in its letter that “the Copyright Office is in the process of completely overhauling the user interface” and was committed “to build[ing] a user interface that is efficient, easy to use, and results in more reliable and error-free data.”
The Copyright Office also acknowledged the concerns of visual artists “over the lack of “workflow tools” for eCO that, if incorporated into the registration process could make it “seamless.” Here, the Copyright Office noted its intent to incorporate API’s into the registration process and pointed out that in its recent Notice of Inquiry on registration modernization it asked for public comments on the role that API could play in a revised registration process.
Despite acknowledging the criticisms directed by visual artists groups at the Copyright Office for its 750 photograph limit for group registrations, the Office did not give any reason to believe that it would retreat from its controversial decision; rather the Office opined that “the modernized system will be flexible enough to further accommodate visual artist needs.”
The Office also confronted the highly controversial need for copyright registrants to differentiate currently between published and unpublished works in certain instances. With respect to the published/unpublished conundrum, the Office noted that this dichotomy was attributable to the language of the Copyright Act itself, that whether a work is published or not has “significant consequences” for the registration process, and that allowing published and unpublished works in one application would be confusing.
At the same time, the Copyright Office agreed with visual artists that “determining whether a work actually has been published is not always easy,” especially in the online context. In an effort to provide some clarity in this difficult area, the Copyright Office stated that it “is planning to issue a Notice of Inquiry in 2019 on issues relating to online publication as they relate to registration requirements. The Office expects that this will help alleviate visual artists’ challenges regarding publication, at least in the registration context.”
2. Licensing. Here the Copyright Office analyzed the licensing issues facing visual artists as the market moves from a print-based medium to an online one. In particular, the Office reviewed the adverse impact on their licensing revenues of both digital-based infringements and stripping identifying metadata from creative works. With respect to the latter, the Office stated that “stripping out rights metadata not only makes it difficult for owners to actively monetize their works, but also frustrates prospective licensees’ efforts to locate the owners of images they seek to utilize.”
The Copyright Office also commented on the decades-old “orphan works” problem—the significant difficulties that users seeking to use works face when they try to identify the rightsholders of works protected by copyright. According to the Copyright Office, visual artists worry that users will be unable to locate them and uses of their works will go uncompensated—a problem exacerbated by the fact that [v]isual artists are especially vulnerable to the orphan works conundrum because ownership information often is not evident from the face of the work itself, and works such as photographs can be in deteriorated condition or donated to museums without any attached documentation.” The Office pointed out that it continues to support legislation that would limit infringement remedies against users who use “orphaned works” without permission if the user engaged in a good faith and diligent yet fruitless search for the copyright owner. The Office did acknowledge that various visual artists groups (including ASMP) in the past have expressed serious concerns about such a legislative solution.
3. Enforcement Obstacles. In its final section, the Copyright Office’s letter focused in part on the well-documented problems that are at the heart of the visual artist community’s push for a small claim bill: (1) widespread infringements of their works in an online environment and (2) the fact that it is prohibitively expensive and burdensome for visual artists to bring and maintain copyright infringement suits in federal court. The Copyright Office concluded its missive by declaring it strong support for “the idea of a small claims tribunal, located within the Office, to help allay the significant costs and time required for federal court litigation.”
4. Bottom Line. The Copyright Office’s letters bring few surprises. Of course, the Copyright Office’s strong support for small claims legislation is welcome and entirely consistent with the Office’s actions over the past several years since it issued its small claims report in 2013. It remains questionable as to whether Congress has an real interest in revisiting the highly controversial orphan works issue–despite the Office’s interest in its doing so. The announcement by the Office that it will issue a Notice of Inquiry to look at online publication issues and the registration process is a surprise. It is an intriguing development and ASMP hopes it will lead to fundamental changes with respect to the published/unpublished conundrum.